Chase v. City of Cleveland.
Municipal corporations — Negligence—Icy sidewalk — Liability—Pleading.
In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred, is a public highway within the corporate limits; that upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to *506have made the sidewalk safe before the accident, are not sufficient to show negligence.
Error to the Court of Common Pleas of Cuyahoga county. Reserved in the District Court.
The plaintiff commenced her action by filing in the court of common pleas of Cuyahoga county a petition which is, in substance, as follows :
At all the times hereinafter mentioned the defendant was, from thence hitherto has been, and still 3s, a municipal coi’poration, being a city of the first cl,ass, and as such corporation it had and has custody, care, and supervision of all the public streets and highways within the corporate limits of said city, and was and is bound to keep the same free from obstruction and danger, and safe for persons passing along the same. On the 3d day of January, 1878, Wood street was a street and public highway within said corporate limits, and it was then and there the duty of defendant to keep said street and the sidewalks thereon, and forming part thereof, safe and free from the accumulation of ice or snow which might become dangerous to persons passiug along the same, to acquaint itself with any dangerous obstruction or acccumulation of ice or snow casually occurring, and to forthwith remove the same upon obtaining such knowledge. Yet defendant disregarded its said duty in the premises, and did not keep said sidewalk' free from accumulation of snow and ice dangerous for such persons, and either failing to acquaint itself with the existence of such dangerous accumulation of ice and snow, else knowing thereof did not remove such dangerous accumulations upon said sidewalks upon having notice thereof. On said 3d day of January, 1878, and for a number of days next preceding, defendant had carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk on the west side of Wood street between Rockwell and St. Clair streets, in front of land then occupied by G. H. Adams, so as to become dangerous for persons passing *507along the same, said ice and snow having been beaten smooth and slippery, so that children had made a slide there, which had been there for some days previous. Of all which defendant had or might have informed itself in time enough to have made said sidewalk safe before the occurrence of the accident hereinafter mentioned. On said 3d day of January, there had been a light fall of snow, so as to cover and conceal said slide and slippery and dangerous condition of said ice and snow and sidewalk from persons passing along the same. As plaintiff was passing along said sidewalk, in the usual way, using all due care, and ignorant of its slippery and dangerous condition, she fell and was injured, etc., which accident and damages were caused wholly by defendant’s negligence. A prayer for judgment follows.
To this petition a demurrer was filed by defendant, which was sustained, a,nd judgment rendered against plaintiff. Upon error prosecuted to the district court the cause was ordered reserved to this court. ,
Mix, Roble Sf White, for plaintiff in error.
The petition alleges facts from which notice to the city is a legal inference. Constructive notice was sufficient, and the facts alleged amount to constructive notice. 2 Thomp. Neg. 762-4; Whart. Neg., sec. 963, n. 2; 2 Dill. Mun. Corp., secs. 1025, 1026; Chicago v. Fowler, 60 Ill. 322; Reed v. Northfield, 13 Pick. 94, 98; s. c., 23 Am. Dec. 662; Howe v. Plainfield, 41 N. H. 135; Aurora v. Hillman, 90 Ill. 61, 64; Evers v. Hudson River Bridge Co., 18 Hun, 144; Blakeley v. Troy, 18 Hun, 167; Todd v. Troy, 61 N. Y. 506; Twogood v. Mayor, etc., 102 N. Y. 216; Baltimore v. Mariott, 9 Md. 160, 177.
We do not claim that the city is bound at all events to keep its streets safe from slipperiness. We do not claim that it is bound to use extraordinary efforts to this end. But we do insist that it is bound to use reasonable diligence to keep the streets reasonably safe from dangers to persons using due care, from whatever cause such dangers *508arise. That the defect arises from natural causes does not exempt the city from liability; nor does the intervention of a wrong-doer. Palmer v. Portsmouth, 43 N. H. 265, 268; Chamberlain v. Enfield, 43 N. H. 356; 2 Thomp. Neg. 787, 788; 2 Dill. Mun. Corp., sec. 1024. Indeed, the question of the cause of the defect seems immaterial. As soon as the defect exists, and the city has real or constructive notice, a duty arises, on the part of the city, to use reasonable care and diligence to remove the defect or guard against injury therefrom.
The whole chain of authority that the city is not liable for slippery sidewalks rests on Massachusetts decisions. To evade the supposed effects, of a statute, the courts of that state indulged in some judicial legislation. The courts of some of the other states, influenced by this authority, and without examining the reasoning, have adopted the result. But whenever the question has been examined, on principle, the ruling has been in our favor.
The Massachusetts decisions are nob applicable to this state, because (1) they rest on doctrines as to the liability of New England towns which are not in force as to municipalities in Ohio; (2) they depend on a Massachusetts statute which has no counterpart in Ohio; and (3) these decisions overruled four earlier decisions of that state and have led to such evils and to so much contest by the bar of that state that, after much conflict of decision, the supreme judicial court has nearly refined away the rule. .The following are the cases referred to: Stanton v. Springfield, 12 Allen, 566; Loker v. Brookline, 13 Pick. 343, 346; Springer v. Bowdoinham, 7 Greenl. *441; Hall v. Lowell, 10 Cush. 260; Billings v. Worcester, 102 Mass. 329; Horton v. Ipswich, 12 Cush. 488; Kirby v. Boylston Market Ass., 14 Gray, 249, 252; s. c., 74 Am. Dec. 682; Shea v. Lowell, 8 Allen, 136; Wilson v. Charleston, 8 Allen, 137; Payne v. Lowell, 10 Allen, 147; Johnson v. Lowell, 12 Allen, 572; Hutchins v. Boston, 12 Allen, 571; Nason v. Boston, 14 Allen, 508; Luther v. Worcester, 97 Mass. 268, 271; Stone v. Hubbardston, 100 Mass. 49, 56; Morse v. Boston, 109 *509Mass. 446; McAuley v. Boston, 113 Mass. 503; Spellman v. Chicopee, 131 Mass. 443; Street v. Holyoke, 105 Mass. 82; Pinkham, v. Topsfield, 104 Mass. 78; Gerald v. Boston, 108 Mass. 580; Fitzgerald v. Woburn, 109 Mass. 204; Gilbert v. Roxbury, 100 Mass. 185; Williams v. Lawrence, 113 Mass. 506; Cromarty v. Boston, 127 Mass. 329. And see Frost v. Portland, 11 Me. 273; French v. Brunswick, 21 Me. 29; s. c., 38 Am. Dec. 250; Merrill v. Hampden, 26 Me. 234; Tripp v. Lyman, 37 Me. 250.
Here we have decisions that it is right to nonsuit plaintiff if a sidewalk is sufficiently level for ordinary purposes, Johnson v. Lowell; if no unusual slope, Stone v. Hubbardston; if the slope is one inch in eight, Gilberts. Boxbury, And that the lesser slopes — or one inch in forty-eight, Billings v. Worcester; one in eighteen, Luther v. Worcester; one in sixteen, Hutchins v. Boston, Fitzgerald v. Woburn—so increase the danger that it must be submitted to a jury. The city, as matter of law, is not liable if the ice has a slope of one inch in eight, Gilbert v. Roxbury; and is liable if it has the less slope of one inch in ten, Gerald v. Boston. The city is not liable unless the ice is so thick as to be an obstruction by height, Stanton v. Springfield; is not liable, although there is a ridge of ice, if plaintiff slips because of the slipperincss, and does not stumble, Morse v. Boston and McAuley v. Boston. A depression filled with smooth ice, level with the rest of the sidewalk, is not a defect; but the depression is a defect because it is filled with smooth ice. Spellman v. Chicopee.
"We find fifteen cases as to icy sidewalks reaching the court of last resort of a single state, from Stanton v. Springfield to Williams v. Lawrence, in eight years, indicating wide-spread aud strenuous dissatisfaction upon the parj; of the bar with the doctrine there established.
But this whole slippery slope distinction seems to be absurd. To say that level ice, as a matter of law, is not dangerous, is to make a presumption of law contrary to fact. If inclined slipperiness is a defect and level slipperiness is not a defect, it is clearly immaterial whether *510the slipperiness is caused, by ice, grease, or glass. The slipperiness is the danger, the danger is the defect. Whether the danger is actionable or non-actionable must depend on the degree and nature of the danger, not on the material giving rise to the'danger.
So other courts, attempting to follow the Massachusettdecisions, have held municipalities not to be liable for level slippery sidewalks. Mauch Chunk v. Kline, 100 Pa. St. 119; Cook v. Milwaukee, 24 Wis. 270, 274; Quincy v. Barker, 81 Ill. 300; Broburg v. Des Moines, 63 Iowa, 523; Vandyke v. Cincinnati, 1 Dis. 532; McKellar v. Detroit, 57 Mich. 435; Smyth v. Bangor, 72 Me. 249, 251. Other cases hold the municipality for various degrees of incline. Perkins v. Fond du Lac, 34 Wis. 435; McLaughlin v. Corry, 77 Pa. St. 109.
In the following cases, where the Massachusetts doctrine of a distinction between a dangerous slipperiness caused by level, and one originating from sloping ice, was not recognized, recoveries were sustained for.damages from falling on icy, slippery sidewalks. Cloughessey v. Waterbury, 51 Conn. 405-420; Hubbard v. Concord, 35 N. H. 52; s. c., 69 Am. Dec. 520; Darling v. Westmoreland, 52 N. H. 401; Clark v. Chicago, 4 Biss. 486; Mosey v. Troy, 61 Barb. 580; Todd v. Troy, 61 N. Y. 506; Baltimore v. Marriott, 9 Md. 160; Providence v. Clapp, 17 How. (U. S.) 161; Johnson v. Haverhill, 35 N. H. 74; Congdon v. Norwich, 37 Conn. 414; Burr v. Plymouth, 48 Conn. 460; Landolt v. Norwich, 37 Conn. 615; Dooley v. Meriden, 44 Conn. 117; Evans v. Utica, 69 N. Y. 166; Twogood v. Mayor, etc., 102 N. Y. 216; Darling v. New York, 18 Hun, 340; Thomas v. Mayor, 28 Hun, 110; Kenny v. Cohoes, 16 N. Y. Week. Dig. 206; Rich v. Mayor, 17 N. Y. Week. Dig. 140; Chapmnn v. Silver Creek, 20 N. Y. Week. Dig. 253. And see Evers v. Hudson River Bridge Co., 18 Hun, 144; Blakeley v. Troy, 18 Hun, 167.
These courts, deciding the law as we claim it to be, are of high standing. Each gives the question thorough examination on principle, in most instances considering *511the reasoning and results of the leading decisions on the other side They are in harmony with all the analogies of the law, treat all defects alike, allow for varying circumstances, are reasonable, and keep distinct the province of the judge and jury. The doctrine they uphold has not and will not lead any court into the quagmires of doubt and inconsistency in which flounder opposing courts.
Allen T. Brinsmade, city solicitor, for defendant in error,
contended that the provision of the statute conferring upon the council the care, supervision, and control of public highways and streets, and.requiring them to be kept open and in repair and free from nuisance, imposes ho liability upon municipalities for damages arising from injuries caused by mere slipperiness of the walks occasioned by ice and snow, and not accumulated to such an extent as to cause an obstruction, and cited: McKeller v. Detroit, 57 Mich. 435; Stanton v. Springfield, 12 Allen, 566; Chicago v. McGiven, 78 Ill. 347; Landolt v. Norwich, 37 Conn. 615; Smyth v. Bangor, 72 Me. 249; Stone v. Hubbardston, 100 Mass. 49; Quincy v. Barker, 81 Ill. 300; Cook v. Milwaukee, 24 Wis. 270; Vandyke v. Cincinnati, 1 Dis. 532; Nason v. Boston, 14 Allen, 508; Broburg v. Des Moines, 63 Iowa, 523; McLaughlin v. Corry, 77 Pa. St. 109; Mauch Chunk v. Kline, 100 Pa. St. 119; Clark v. Chicago, 4 Biss. 488; Grossenbach v. Milwaukee, 65 Wis. 31; Hubbard v. Concord, 35 N. H. 52; s. c., 69 Am. Dec. 520.
The law exacts of municipalities only that which is practicable aud reasonable in regard to keeping the streets open and in repair, and free from nuisance. The duty of the municipality must be interpreted upon a reasonable basis, with reference to the actual condition of affairs; and things impracticable are not required from the city authorities.
It is well settled that the city should not be held liable unless it had notice of the defective condition of the sidewalk, or unless it had notice of such facts and circumstances as would, by the exercise of reasonable diligence, *512lead a prudent person to such knowledge. Chicago v. Murphy, 84 Ill. 224. There is no positive averment in the petition that the city had notice of the obstruction complained of.
Spear, J.
It will be noticed that there is no allegation in this petition that the walk was itself defective. No improper construction is charged, nor is it alleged that the walk was in such condition as to be peculiarly liable to cause the formation of ice; nor was the ice rough or uneven. The place where the accident occurred does not even appear to have been upon a slope or incline. So far as the charge of negligence on the part of the defendant is concerned the gravamen of the complaint is : 1. The defendant is a city of the first class ; 2. Wood street is a street within the corporate limits; 8. For a number of days next preceding the accident the city had carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk in front of the property of a private owner, so as to become dangerous for persons passing along, the same, having been beaten smooth and slippery, so that children had made a slide there, which had been there for some days previous, of all which defendant had or might have informed itself in time to have made the walk safe before the occurrence. Putting this charge in fewer words, it appears that the defendant is a-city of the first class. Wood street is one of the public highways. On a sidewalk of this street, in front of private property, the city suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason to become and remain dangerous. Of this condition of the walk the city might have informed itself in time enough to have make it safe before the an cident.
Is this a sufficient charge of negligence ? To show neg ligence it must be made to appear (1) that the city had no tice, actual or constructive, of the dangerous condition of the walk in time to remedy it, and (2) that, having mch notice, it was the city’s duty to remedy it.
*513As to the first: For all that appears Wood street may be a street lying on the outer limits of the corporation. It may be a street but little improved, but little used, and but little frequented by the general public. If, therefore, as to every part of every public highway within the municipality it was the duty of the city to take unusual means and use extraordinary care to keep itself advised of the condition of the walks, then such duty attached to this part of Wood street; otherwise not. We say extraordinary care, because the allegation that the city “had or might have informed itself,” etc., means only that it might have informed itself, which is another form of saying that it was possible to have obtained the information. The terms “ a number of days ” and “ some days ” may mean two days or more. Neither necessarily indicates a greater number than two. Now, as to the most public and frequented streets, it may be that the allegation that the accumulations were there a number of days, or some days, is sufficient to cause notice to the city to be presumed, but this would not necessarily be so as to out-of-the-way streets and those remote from business centers.. It would be improbable that any city official who owed any duty in that regard would pass in the time stated under such circumstances as to make it incumbent oh him to observe the condition of the walk, or that the proper city authorities would be informed of its condition from other sources. The allegations referred to are, therefore, clearly insufficient to show notice to the city. So that the plaintiff is remitted, as to this essential element, to the allegation that it was possible for the city to have obtained the information. We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their public ways, or of the lives and limbs of pedestrians. The law provides that such corporations shall have the care, supervision, and conti’ol of the streets, and shall cause them to be kept open and in repair, and free from nuisance. • This requires a reasonable vigi*514lance, in view of all the surroundings, and does not exact that which is impracticable. When the authorities have done that which is reasonable in this regard they have discharged the entire obligation imposed by the law. They are not bound to use all possible vigilance in’ inspection or in obtaining information.
This view, if correct, disposes of the case; but, waiving this, is the petition free from infirmity in other respects ? The city is bound to exercise due care to keep the streets and walks reasonably and relatively safe, but can not be required to make all streets and walks absolutely safe or equally so. The complaint is that the walk was dangerous by reason of accumulations of ice and frozen snow, which rendered it slippery. The result was due in part to the elements and in part to the beating down of the ice and snow, especially by children sliding on it. If, then, the city of Cleveland, as to all the sidewalks within the corporarate limits, is liable for accidents which occur by reason of slippery sidewalks, of the condition of which it has notice, then, were notice shown here, it would be liable to the plaintiff in this case. It is insisted that there is such liability. If this be the law, an onerous burden is cast upon many of our municipal corporations. In all northern cities and towns storms of snow and sleet, producing ice and resulting, in slippery walks, are of frequent and constant recurrence during the winter season, and accidents of the character complained of are also frequent. Such dangers are apt to exist in many places at the same ‘time, and at points widely separated from one another. They appear at many points to-day, disappear to-morrow, and like dangers appear at other places the next day. They are affected by changes of weather, which are likely to occur at any time, and frequently many times within a few hours. It is not unreasonable to assume that there were hundreds of similar dangerous places in the city of Cleveland at the time of the accident to plaintiff.'' To effectually provide against dangers from this source would require a large special force involving euormous expense; for, to make the protection *515effective, constant activity and vigilance would be required as well in the ascertainment of tbe dangers as in their removal upon being known. Such duties do not naturally fall within the province of the police force, as that force is not a city agency for any such purpose. It would be possible to employ and pay a special force, but it does not follow that it would be reasonable to require it. '
Regarding the removal of dangers, as well as regarding watchfulness in ascertaining their existence, the municipality is bound to exercise only ordinary care; to take such measures as are reasonably to be required and adequate, in view of the ordinary exigencies. The condition of the walk in this case is not complained of as a defect in the sidewalk, but rather an accumulation on- it which created a nuisance. This was transient in its character, and not such as to ordinarily require the interference of the city authorities for its abatement. Those 'authorities are. empowered to clear the streets from snow and filth, and, by ordinance, to require property owners to keep the walks cleared from snow and ice, but ordinarily liability does not attach for a failure to do so. Slipperiness may arise from a variety of causes. A thin film of mud on the walk will often produce it, and yet liability would hardly be claimed to arise from such cause. It is not clear, on principle, that an exception should necessarily be made in regard to slipperiness from accumulations of ice.
¥e have considered the numerous authorities referred to by counsel in the able and elaborate printed brief, and have read the argument with much pleasure. It invites to an extended discussion of the subject anda review of the'authoriities. "We doubt whether good would result from extended discussion, or from an attempt to weigh the arguments in the conflicting decisions of other states, or even from a lengthy review of those decisions, and hence do not enter upon either, but are content to rest this branch of the case, as to the duty of the city regarding removal of ice from the sidewalks within the municipality, on the ground tersely put in substance by counsel for defendant, that the law exacts of munici*516palities only that which is practicable and reasonable in regard to keeping streets open, in repair, and free from nuisance ; that the duty of the municipality, under the statute, must-be interpreted upon a reasonable basis in reference to the actual condition of affairs; that impracticable things are not required, and that to hold the city liable, under the allegations of this petition, would be to require that which is impracticable, and to impose an onerous and unreasonable burden upon it.
Whether or not a case might be made, growing out of a peculiar situation of a walk at a greatly frequented place upon one of the most public streets wherein the city might be held for damages arising from slipperiness of ice alone, we need not here consider. Such a ease has not been made.
The petition does not state a cause of action, and the judgment of the court of common pleas is affirmed.