(dissenting).
I cannot agree to an affirmance of this judgment upon the filing of the remittitur as suggested in the majority opinion. The appellant reguested an instructed verdict in its behalf. The court refused the request. In my opinion the evidence was insufficient to justify a submission of the case to the jury. I have been unable to find any Texas cases discussing the liability of a city for injuries sustained by pedestrians by falling on ice or snow, but there are many cases from other jurisdictions discussing such liability.
The injury in this case did not occur on a sidewalk. It occurred in the street between the safety zone and the curb. This space was used by pedestrians in going from the safety zone to the curb and was also used as a traffic lane for automobiles and other vehicles. It would be properly classed as a crosswalk and not as a sidewalk. The duty resting upon a city to keep its sidewalks Tree from ice and snow does not apply to the same extent to a crosswalk or crossing on a public street, nor would it apply in this case to the crossing used in passing from the safety zone in the customary way to the curb. This is due to the fact that it is more difficult to keep crosswalks free from ice and snow. Where a street is traveled by the public with vehicles, when there is an accumulation of snow thereon, the removal of all snow and ice at every crossing would materially interfere with the convenience and practical use of the street for- trucking and driving. Even if the entire removal of snow from a crosswalk is desirable for its use by pedestrians, the ordinary travel upon a street necessarily carries more or less snow upon the crosswalk, and when it thaws and freezes with the varying temperature it would be quite impossible, except by continuous effort, to keep crosswalks or crossings wholly free from snow and ice. Dupont v. Village of Port Chester, 204 N. Y. 351, 97 N. E. 735, 39 L. R. A. (N. S.) 1167, 1170, Ann. Cas. 1913C, 1066; Brennan v. City of New York, 130 App. Div. 267, 114 N. Y. S. 578, 580; O’Donnell v. Butte, 65 Mont. 463, 211 P. 190, 32 A. L. R. 1284, 1289.
The general rule is that ice or snow upon a sidewalk in its natural state is not to be classed as a dangerous obstruction such as a city is required to remove, and that a city is-not liable for injuries resulting from falls caused by slippery sidewalks occasioned by the accumulation of snow and ice from natural causes. Nor is the city liable for a fall caused by the slippery, rough, and uneven condition of a sidewalk due to the alternate melting and freezing of the snow, and the travel thereon by the public, so long as the rough- and uneven condition does not amount to an. unusual or dangerous obstruction to travel. The mere fact that the sidewalk, • as the result of the falling of snow, and the traffic thereon, has become uneven and slippery, is not sufficient in itself to make a cause of action. Gist v. City of St. Joseph (Mo. App.) 220 S. W. 722; Berger v. Salt Lake City, 56 Utah, 403, 191 P. 233, 13 A. L. R. 5; 13 R. C. L. 409; Dapper v. Milwaukee, 107 Wis. 88, 82 N. W. 725. This is due to the fact that a general snow falling throughout the city necessarily covers many miles of sidewalks- and streets and immediately after the snowfall the snow is beaten down by the travel of thousands of people. It necessarily becomes rough, uneven, and slippery. To remove all of this snow would present an almost unsurmountable task and would require an expenditure of an enormous sum' of money. Moreover, it is generally known that the elements relieve such a condition about as rapidly as it could be relieved by the city, and the city may, therefore, ordinarily await, without negligente, a change of temperature which will remove the danger. Furthermore, when such a condition exists, it is obvious, and every one is or should be on his guard. Every pedestrian on the sidewalk or in the street is warned by all of his surroundings that ice and snow abound, and consequently the danger of slipping and falling is to be apprehended at every step. The danger due to the ordinary obstruction caused by such a condition is excepted from the category of obstructions for which the city is liable upon the ground of the impracticability of the city’s removing it, and the fact that the danger thereof is apparent to people using the streets and sidewalks. Vonkey v. City of St. Louis, 219 Mo. 37, 117 S. W. 733; Armstrong v. City of Monett (Mo. Sup.) 228 S. W. 771, at page 774; Staley v. City of New York, 37 App. Div. 598, 56 N. Y. S. 237.
It is only when such snow or ice has been permitted to accumulate in ridges or in irregular or uneven forms or heaps in such a way as to constitute an unusual or dangerous obstruction or special danger to travel and interferes with the travel in such a manner that a pedestrian could not, in the exercise of ordinary care, pass over it without danger of *1053tripping or falling — in other words, when the obstruction is such as in fact interferes with travel — that the city is required to remove same. Dupont v. Port Chester, 204 N. Y. 351, 97 N. E. 735, 39 L. R. A. (N. S.) 1167, 1170, Ann. Cas. 1913C, 1066; Brennan v. City of New York, 130 App. Div. 267, 114 N. Y. S. 578, 580; Armstrong v. City of Monett (Mo. Sup.) 228 S. W. 771, 774; Vonkey v. City of St. Louis, 219 Mo. 37, 117 S. W. 733; O’Donnell v. Butte, 65 Mont. 463, 211 P. 190, 32 A. L. R. 1284, 1289; Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523, 61 S. W. 859, 53 L. R. A. 805. It must be an unusual or exceptional danger, that is to say, different in character from conditions ordinarily and generally brought about by the winter weather prevailing in the given locality. O’Donnell v. Butte, 65 Mont. 463, 211 P. 190, 32 A. L. R. 1290; Williams v. New York, 214 N. Y. 259, 108 N. E. 448.
In the case at bar the snowstorm was general throughout the city and surrounding country. The snowfall measured about eleven inches. It was an unusual, but not an unprecedented, snow for this section of the state.
The snow ceased falling about three days prior to the injury. At the time plaintiff left her home on the morning of the accident there was snow on the ground throughout the city. She therefore had notice of the danger of slipping and falling. The top of the safety zone where she was injured was about six inches higher than the level of the pavement and was about twelve or fourteen feet from the curb. The only testimony in the record describing the scene of the accident and the manner thereof is that of plaintiff herself, which testimony is as follows: “That safety zone did not have any snow or ice on top of it. After I got off the safety zone, I went in a southerly direction to the sidewalk in front of what was then McKennon’s drug store. That snow 'had frozen until it was just a solid Mock of ice, and when I made the second step, my foot slipped from under me and I fell and broke my arm. The ice that I spoke of •awhile ago was like that (illustrating with hands); it was angling like that down from the top of the zone, sloping towards the sidewalk. The high part of the angle was up next to the safety zone, and it lacked about an inch being as high as the safety zone, and then it sloped down towards the pavement, and that is where I fell. I can indicate with that stick about the angle that it wds; I think it would be about that far (indicating on pointer). That would be nearly two feet, and it sloped over toward the pavement. When I stepped on that ice there angling off of the safety zone, I did not slip when I put my first foot on there; it was on the second step that I slipped.” This is all of the evidence on the question. From this testimony it will be seen that the high part of the ice where plaintiff fell was about five inches high — one inch less than the height of the safety zone — and sloped to the pavement for a distance of about two feet to the south edge of the ice.
Immediately after the snow ceased to fall on the previous Saturday it became very cold, the temperature dropping below zero, • but thereafter the temperature alternated between thawing in the daytime and freezing at night. At the time of the accident on Tuesday morning there was unfrozen slush between the ice near the safety zone and the curb. There is nothing in the record to show when the ice and snow that caused the fall accumulated at the place of the accident. The space between the safety zone and the curb was a traffic lane used by automobiles. This snow may have fallen at the place of the accident three days prior thereto and remained there until plaintiff was injured, or the snow that fell at the place of the accident may have melted or been removed and other snow carried to the place of the accident by passing vehicles the night before the injury. If the latter condition existed, then certainly the time in which the city was required to discover and remove the snow did not begin until the snow had been placed there by passing vehicles and had frozen in a dangerous heap, and the city would be entitled to a reasonable time thereafter in which to discover the unusual danger, if any, and to remove the same. Neither is there any evidence to show when the snow that caused the fall became frozen and slippery, nor when it became heaped- into such a position as to be dangerous. The vital question to be determined was whether tbe dangerous formation, if any, had existed sufficiently long to require the city to discover and remove same. The burden was on appellee to allege and prove such a state of facts. Such a condition cannot be presumed from the mere fact that the snow had ceased falling three days prior to the injury nor from the mere fact that the condition was possibly dangerous at tbe time of the accident. There is no evidence whatever on this question. The city was not required to remove ordinary snow and ice from the walk. Its duty to discover and remove same did not arise until the snow had become so heaped and frozen as to form a dangerous hazard. If the snow was soft and pliable tbe day before the injury, it did not constitute a dangerous obstruction and the city was not required to remove the same. There was- no evidence that the city actually discovered the dangerous condition. The evidence could not be any stronger than the pleadings. The plaintiff alleged that the traffic between the safety zone and the curb “worked .said snow up to where it was moist and. soft in the daytime and squeezed it up against the safety zone; ⅜ * ⅜ that during the night time said snow would congeal and freeze and become solid.” There is no evidence to support such allegations, but, if we were to accept same as true and were to *1054find that the snow became frozen in a dangerous heap, as alleged, some time during the night prior to the accident, which occurred about 9:30 the following morning, the city would not have had time to discover and remove same prior to the accident, and therefore would not be guilty of negligence for its failure to do so. Vonkey v. City of St. Louis, 219 Mo. 37, 117 S. W. 733, 736; Armstrong v. City of Monett (Mo. Sup.) 228 S. W. 771, 774; Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. 186; Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523, 61 S. W. 859, 53 L. R. A. 805; Gist v. City of St. Joseph (Mo. App.) 220 S. W. 722; Wilson v. City of Clinton, 204 Iowa, 1183, 216 N. W. 698; Hyer v. City of Janesville, 101 Wis. 371, 77 N. W. 729; Kinney V. City of Troy, 108 N. Y. 567, 15 N. E. 728.
We seriously doubt whether the condition of the ice and snow at the time of the accident was such as to require its removal. Certainly there is no evidence that it had been in such condition long enough to charge the city with notice thereof and to make it guilty of negligence for failure to remove same. •.