Aull v. Lee

Citation84 N.J.L. 155,85 A. 1918
PartiesAULL v. LEE.
Decision Date03 March 1913
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Action by Elizabeth M. Aull against Albert W. Lee, executor, etc. Heard on demurrer to declaration. Overruled.

Argued November term, 1912, before GUMMERE, C. J., and GARRISON and BERGEN, JJ.

Martin P. Devlin, of Trenton, for plaintiff.

James & Malcolm Buchanan, of Trenton, for defendant.

BERGEN, J. The cause of action disclosed by the declaration in this cause is that the defendant's testatrix was in her lifetime the owner of a lot of land adjoining a public highway or street in the city of Trenton, the sidewalk of the street being paved with flagstones; that adjoining the said pavement she maintained an open lawn between the line of the pavement and the front wall of her house; that during a snowstorm great quantities of snow fell and lodged upon the sidewalk in front of said lawn, where it remained until the following day, when she caused it to be removed from the sidewalk, and for her own convenience deposited it upon the lawn and there permitted it to remain for a long space of time,

[85 A. 1019]

and, not regarding her duty in that behalf, did not use due and proper care in the placing of sufficient guards or protection about the said snow so that water, resulting from the melting of the snow, could not run along and upon the said sidewalk in front of said premises and there congeal into ice, but wholly neglected and failed so to do, thereby permitting the water resulting from the melting of the snow to run along and upon the said sidewalk, where it hardened and congealed into ice; that by reason of the premises the plaintiff, while lawfully and carefully walking upon the said sidewalk, slipped on the ice so formed, and was thereby thrown to the ground and suffered severe injuries. To this declaration the defendant filed a demurrer, the principal and only reason necessary to be considered in disposing of this cause being that the facts set forth in the declaration disclose no legal duty resting upon the defendant's testatrix in her lifetime, for the breach of which she, or her estate after her death, could be held liable in damages.

It is not claimed by the plaintiff that if the snow had been permitted to remain on the sidewalk, and while there it had melted and the water resulting therefrom had frozen, forming ice upon which the plaintiff had stepped and fallen, the defendant would be liable, and therefore the only material question presented is whether the piling of snow, in large quantities, upon the defendant's property adjacent to the sidewalk, from which the conditions stated resulted, charges sufficient negligence to support an action for the injuries the plaintiff suffered.

We are of opinion that a party is responsible for the results flowing from the artificial accumulation of snow upon his premises, adjoining a sidewalk, and there left to discharge water at times when the natural result would be to form ice upon the sidewalk. The proposition as stated in 28 Cyc. 1439, is: "But an abutting owner or other person may be liable for a special and peculiar injury caused by his own artificial accumulation of snow or ice upon the sidewalk, as by the discharge of water at times when the natural result would be to form ice. The liability is confined as to what a reasonable man might anticipate, and the owner is required to do only what is reasonably necessary to prevent injury."

In Davis v. Rich, 180 Mass. 235, 62 N. E. 375, the plaintiff was thrown and injured by ice formed on the sidewalk, due to water which escaped from a defective pipe on defendant's premises, and defendant was...

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6 cases
  • Foley v. Ulrich, A--945
    • United States
    • New Jersey Superior Court – Appellate Division
    • 30 Marzo 1967
    ......38 N.J. 529, 186 A.2d 112 (1962); Severini v. State, etc., Div. of Alcoh. Bev. Cont., 82 N.J.Super. 1, 5, 196 A.2d 532 (App.Div.1964); Gruschow v. N.J. State Highway Dept., 56 N.J.Super. 146, 150, 152 A.2d 150 (App.Div.1959). .         Any discussion of the problem must start with Aull v. Lee, 84 N.J.L. 155, 85 A. 1018 (Sup.Ct.1913). In that case, the former Supreme Court overruled a demurrer to a declaration which alleged that defendant was the owner of property adjoining a public flagstone sidewalk, with an open lawn between defendant's house and the sidewalk; . '* * * that ......
  • Massey v. Worth
    • United States
    • Superior Court of Delaware
    • 8 Marzo 1938
    ...or ice upon a sidewalk adjoining his premises. Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L.R.A.,N.S., 615, and note; Aull v. Lee, 84 N.J.L. 155, 85 A. 1918; Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A.L.R. 1357. 43 C.J. He may, also, be liable for injuries caused by an artificial di......
  • Saco v. Hall
    • United States
    • United States State Supreme Court (New Jersey)
    • 14 Febrero 1949
    ......Taggart v. Bouldin, Err. & App. 1933, 111 N.J.L. 464, 467, 168 A. 570. This latter case rejected the theory of liability announced in Aull v. Lee, Sup.1913, 84 N.J.L. 155, 85 A. 1018.        But all of these cases must be evaluated in the light of the rights of the public and the abutting owner. The ownership in land over which a street has been laid is, for all substantial purposes, in the public, although the owner retains ......
  • Savarese v. Fleckenstein
    • United States
    • United States State Supreme Court (New Jersey)
    • 13 Noviembre 1933
    ...freezing and causing injury, we feel then that we have established a case for your determination." The court overruled Aull v. Lee, 84 N. J. Law, 155, 85 A. 1918, and reached the result indicated. Neither the question of a nuisance, nor that of an independent contractor, was before the cour......
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