Heeney v. Sprague

Decision Date24 February 1877
Citation11 R.I. 456
PartiesWILLIAM HEENEY et ux. v. MARY SPRAGUE.
CourtRhode Island Supreme Court

A municipal ordinance required the removal of snow, & c from sidewalks, by the owner of the adjoining premises, and prescribed a penalty for neglect. H., being injured by a fall on a sidewalk, slippery with snow which had not been removed sued S., the owner of the adjoining premises, claiming that S. was liable in damages to H. on account of the violation of the ordinance by S.: -

Held, that the action would not lie.

The violation of a duty imposed by a municipal ordinance, and sanctioned by a fine, will not support an action on the case for special damages in favor of one injured by the violation and against the violator.

The power to enact ordinances being delegated must be strictly construed.

Semble, that where a statute imposes a duty, unless the duty is for the benefit of particular persons or classes or is in consideration of some emolument or privilege conferred, a person damnified by the violation of the duty cannot maintain an action on the case against the violator for special injuries caused by the violation, - the only liability arising from the violation of such a duty being the penalty prescribed by the statute.

Query . How far does a liability upon a statutory duty arise from Stat. Westm. II. cap. 50?

MOTION in arrest of judgment.

This action was trespass on the case against the defendant, brought in the Court of Common Pleas and appealed to this court. In this court the plaintiff recovered a verdict for $2,750, and the defendant moved in arrest of the judgment thereon. The declaration set forth the following provisions of the Ordinances of the City of Providence: -

" SECTION 5. The owner or owners, occupant or occupants, or any person having the care of any building, or lot of land, bordering on any street, square, or public place within the city, where there is a sidewalk supported by a curbstone, shall within the first four hours of daylight after the ceasing to fall of any snow cause the same to be removed therefrom, and in default thereof shall forfeit and pay a sum not less than two dollars, nor more than ten dollars; and for each and every hour after the expiration of the said four hours that the snow shall remain on such sidewalk, such owner or owners, occupant or occupants, or other person, shall forfeit and pay a sum not less than one dollar, or more than ten dollars.

SECTION 6. The provisions of the preceding section shall also apply to the falling of any snow from any building.

SECTION 7. Whenever the sidewalk, or any part thereof, adjoining any building, or lot of land, on any street, shall be incumbered with ice, it shall be the duty of the owner or owners, occupant or occupants, or any person having the care of such building or lot, to cause such sidewalk to be made safe and convenient, by removing the ice therefrom, or by covering the same with sand, or some other suitable substance; and in case such owner or owners, or other persons, shall neglect to do so, for the space of two hours during the daytime, he shall forfeit and pay a sum not less than two, nor more than ten dollars, and a like sum for every day thereafter that the same shall continue so incumbered."

And charged that the defendant, neglecting to perform the duty imposed by these provisions, allowed the sidewalk in front of certain realty owned by her in Providence to remain covered with snow and to become slippery, whereby the plaintiff's wife, in the exercise of due caution, & c., on her part, fell on said sidewalk and suffered severe and permanent injury.

Thurston, Ripley & Co., in support of the motion, cited Flynn v. Canton Co. of Baltimore, 40 Md. 312; Van Dyke v. City of Cincinnati et al. 1 Disney, 532; Adm'r of Chambers v. Ohio Life Ins. & Trust Co. 1 Disney, 327; Kirby v. Boylston Market Association, 14 Gray, 249; Wood on Nuisances, page 766.

William W. Douglas & John E. Risley, contra .

I. The city ordinance set forth in the declaration passed in pursuance of the provisions of the city charter imposed upon the defendant a duty which she has neglected to perform. Such neglect was the immediate cause of the injury, and subjects her to an action on the case by the injured person.

1. An action on the case will lie for damages directly occasioned by the neglect or omission of a duty imposed by law. Com. Dig. Action upon the Case (A); Shearman & Redfield on Negligence, pp. 16, 65, 412, 423, 460, and cases cited; Beckford v. Hood, 7 Term Rep. 620; Couch v. Steel, 3 El. & B. 411; Steam Nav. Co. v. Morrison, 13 C. B. N. S. 581, 594, per Williams, J.; Caswell v. Worth, 5 El. & B. 848, 855, 856; Aldrich v. Howard, 7 R.I. 199; Wilson v. Susquehanna Turnpike Road Co. 21 Barb. S.C. 68; Townsend v. Same, 6 Johns. Rep. 90; Angell on Highways (2d ed.) p. 340, § 286; p. 362, § 298; p. 364, § 299, and cases cited.

2. The city ordinance, enacted under the general authority given by the city charter, is binding upon all the inhabitants of the city, and has within its limits all the force and effect of law. Jones v. Fireman's Insurance Co. 2 Daly N.Y. 307; referring also to Bell v. Quinn, 2 Sandf. 146.

In Goddard, Petitioner, 16 Pick. 504, Chief Justice Shaw holds a similar ordinance valid and binding.

3. The city charter applicable in this case is entirely independent of the Highway Act which gives a remedy against the city in case of certain obstructions.

The act in the Public Laws, edition 1844, as was decided by the United States Supreme Court, in City of Providence v. Clapp, 17 How. U.S. 161, decided December Term, 1854, did give a remedy to a person injured, in a case like the present, by action against the city; but the General Assembly, in the revision of 1857, absolutely annulled the action and remedy against the city or town, by the addition of a provision, that no person thus injured may avail himself of such remedy, unless notice in writing has been given to the city, of the particular obstruction, twenty-four hours before the injury occurs . This places the plaintiff in the dilemma that he has given notice and so estopped himself from ever bringing his action: because if he gave notice or any one else gave it to his knowledge, he knew of the particular danger, and it was negligence on his part not to have avoided it; or that he has not given notice, and is so barred of his action by the statute. If anyone else has given such notice, and he did not know it, the fact would not be available to him on trial, and his action would be equally barred.

Practically, then, we say that there is no remedy given by the statute against the city for this class of injuries, at least no such certain remedy as is guaranteed to every citizen in the words of our Constitution: " Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character." Constit. R.I. art. 1, § 5. And the intention of the statute was to take away the liability which the Supreme Court had thrown upon the city under the old statute.

This circumstance takes the case at bar out of the reason of the decision in Kirby v. Boylston Market Association, 14 Gray, 249, even if the decision in that case be considered law. The statute of Massachusetts, in force when that case arose, was similar to the Rhode Island act in force till 1857, and provided a remedy against the city or town which was both practicable and adequate. Vol. 1, Supplement to Rev. Stat. Mass., Stat. 1850, cap. 25, § 1.

The subsequent case of Stanton v. City of Springfield, 12 Allen, 568, in which the full bench sat, and where the opinion was delivered by Justice Hoar, holds that the liability of a city under the Highway Act is not measured by the obligation of an individual under the ordinance, but is independent of such ordinance. Dygert v. Schenck, 23 Wend. 446; Selden v. Del. & Hud. Canal Co. 24 Barb. S.C. 362; Beckford v. Hood, 7 Term Rep. 616, citing Lord Mansfield, in Tonson v. Collins, 1 W. Black. 330; Gould v. Langdon, 43 Pa. St. 365.

In Dunlap v. Knapp, 14 Ohio St. 64, a supervisor of highways was declared not liable in damages for alleged neglect of duty, because the supervisor was not as an individual bound to repair the bridge in question.

In all cases of incumbrances placed on the highways the individual causing or negligently suffering the incumbrance is held liable directly to the injured person, or to reimburse the town or city who have been compelled to pay damages to the sufferer. Newbury v. Conn. & Pass. River R. R. Co. 25 Vt. 377; Lowell v. Boston & Lowell R. R. Co. 23 Pick. 24; Same v. Short, 4 Cush. 275; Same v. Spalding, 4 Cush. 277; Troy v. Cheshire R. R. Co. 23 N.H. 83; see also Angell on Highways (2d ed.), p. 362, § 298; p. 364, § 299; Townsend v. Susquehanna Turnpike Road, 6 Johns. Rep. 90; Wilson v. Same, 21 Barb. S.C. 68.

II. The fact that a penalty is incurred by a violation of the ordinance is no bar to an action by the plaintiff who is injured by the violation. Shearman & Redfield on Negligence, p. 423, § 351.

" A statute imposing a fine does not take away the remedy by action of the case."

In Aldrich v. Howard, 7 R.I. 214, Ames, C. J., citing Couch v. Steel, 3 El. & B. 411; Steam Navigation Co. v. Morrison, 13 C. B. N. S. 581, 594; Caswell v. Worth, 5 El. & B. 848, 855, 856, says: " We have no doubt that, when a statute makes the doing or omitting any act illegal, and subjects the offending parties to penalties for the public wrong only, a party specially injured by the illegal act or omission has the right of suing therefor at common law.

III. The neglect of a duty imposed by law subjects the defendant to the same...

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