City of Lewiston v. Isaman

• Decision Date: 14 April 1911
• Citation: 115 P. 494,19 Idaho 653
• Parties: CITY OF LEWISTON, a Municipal Corporation, Respondent, v. S. G. ISAMAN, Appellant
• Court: Idaho Supreme Court

115 P. 494

19 Idaho 653

CITY OF LEWISTON, a Municipal Corporation, Respondent, v. S. G. ISAMAN, Appellant

Supreme Court of Idaho

April 14, 1911

MUNICIPAL CORPORATION-SIDEWALK-DOORS IN-PERSONAL INJURY-LIABILITY OF CITY-COMMON-LAW LIABILITY-PAYMENT OF DAMAGES BY CITY-RECOVERY OVER BY CITY-STATUTE LAW-ORDINANCES-AUTHORITY OF CITY OVER SIDEWALK-AUTHORITY OVER AREA-WAYS AND DOORS IN SIDEWALK-MAY REGULATE-DUTY TO KEEP SAFE-LIABILITY OF ABUTTING LOT OWNER-ORDINANCES-WILFUL NEGLECT-GROSS CARELESSNESS-NUISANCE PER SE-LANDLORD AND TENANT.

(Syllabus by the court.)

1. The owner of a city lot is not liable, either at common law or by the terms of the charter of the city of Lewiston, for injuries received by a third person because of a defect in the sidewalk in front of his property, where such defect was not caused by the lot owner's wilful neglect of a duty enjoined by law or gross negligence.

2. Under sec. 5 of the city charter in force at the time of the accident involved in this case, the city had power to control all streets, sidewalks, and public grounds within its limits dedicated to a public use; and by sec. 7 of said charter, said city was authorized to provide for clearing, opening, improving, constructing and repairing streets, alleys, sidewalks, etc., also to regulate cellar-ways, cellar-lights and all sidewalks within the city.

3. Under sec. 8 of said charter, the city council, when it deemed it expedient to cause sidewalks to be constructed repaired or kept in order, had the power to provide for the same by ordinance; and if any person owning real estate within the city should refuse or neglect to build or repair sidewalks according to the requirements and provisions of such ordinance, it was made the duty of the city council to cause such walks to be constructed or repaired and pay for the same out of the general funds of the city, and thereafter to assess such expense against the real property along said sidewalks and collect the same as other taxes are collected.

4. Sec 17 gives the city authority to prevent injury and to cause any nuisances to be abated, and the power to abate public nuisances may be summarily exercised.

5. Sec 93 makes the city liable to anyone for loss or injury to person or property growing out of any casualty or accident happening to any such person or property on account of the condition of any street or public ground therein; but said section does not exonerate any officer of the city or any other person from such liability when such casualty or accident is caused by the wilful neglect of a duty enjoined by law, or by gross negligence or wilful misconduct of such officer or any other person.

6. The word "regulate" as used in said section 7 means to put or keep in order, and to regulate sidewalks includes the control thereof.

7. The provisions of said sec. 7 expressly authorized the construction of cellar-ways and the placing of doors thereover, and it is the duty of the city to keep such doors which are a part of the sidewalk, in repair, if the owner fails to do so, and assess the expense thereof to the abutting lot.

8. The obligation and duty to keep the streets and sidewalks in a safe condition is placed by the provisions of its charter upon the city, and the city has been provided by said charter with authority and power to discharge such duty, and in case it fails to perform such duty, the city is made expressly liable, under the provisions of sec. 93 of the charter, for any damage to person or property.

9. From the nature of the duty required of the city and the character of the ordinance in question, the only liability resting upon the property owner is that which the ordinance itself imposes.

10. If an injury occurs on account of the wilful neglect of a duty enjoined by law, or the gross negligence or wilful miscon- duct of the lot owner, he is liable to the person injured and is liable over to the city if the city should pay the damages for such injury.

11. The rule of law applicable to obstructions placed in streets which are nuisances per se is not applicable to the facts of this case.

12. Said cellar-way and doors in the sidewalk were maintained by authority of law and said doors were a part of the sidewalk, and under the provisions of sec. 3659, Rev. Codes, cannot be deemed a nuisance.

13. The defendant was not permitted to appear and defend in the case of McLean v. City of Lewiston, hence was not bound by the judgment entered in that case.

14. Where an abutting owner has leased his entire premises and possession thereof is given to his tenants, he is not liable for personal injuries caused by the carelessness or negligence of the tenants in keeping the sidewalk in front of such premises in proper repair.

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action to recover over by the city for personal injuries. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to the appellant.

Johnson & Stookey and Eugene O'Neill, for Appellant.

"It is universally admitted that there is no common-law liability of abutting property owners to repair sidewalks." (Browning v. City of Springfield, 17 Ill. 143, 63 Am. Dec. 355.)

There is nothing in our statutes that changes the common law in this respect.

A city authorized "to regulate the use of sidewalks" may authorize the building by property owners of openings for cellar-ways in the sidewalks." (Jorgensen v. Squires, 144 N.Y. 280, 39 N.E. 373.)

The authority to construct cellar-ways in the city of Lewiston is expressly authorized by the legislature when it conferred the power and the duty upon the city by its charter to control and govern and establish rules regulating "cellarways." The acceptance of its charter precludes the city from now asserting that cellar-ways are not lawful or from shirking the responsibility and absolute duty of controlling, governing and regulating the same. (Russell v. Village of Canastota, 98 N.Y. 496-503; Rider v. Clark, 132 Cal. 382, 64 P. 564.)

"Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." (Sec. 3659, Rev. Codes; Adams v. Fletcher, 17 R. I. 137, 33 Am. St. 859, 20 A. 263; Jorgensen v. Squires, 144 N.Y. 280, 39 N.E. 373; Morrison v. McAvoy, 70 P. 626; Wilhelm v. City of Defiance, 58 Ohio St. 56, 65 Am. St. 745, 5 N.E. 18, 40 L. R. A. 294.)

If the person who is sued by the city did not have notice or knowledge of the suit against the city, the city in its action must establish against such person all the actionable facts. It must make out anew the case which the injured person made out against it; and, in addition, the fact that the person whom it is suing was the author of the defect and was guilty of wrong or negligence. (15 Am. & Eng. Ency. of Law, 2d ed., 489, 490; Robbins v. Chicago, 4 Wall. (U.S.) 657, 18 L.Ed. 427; Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712; Catterlin v. Frankfort, 79 Ind. 547, 41 Am. Rep. 627; Milford v. Holbrook, 9 Allen (Mass.), 17, 85 Am. Dec. 735; St. Joseph v. Union R. Co., 116 Mo. 636, 38 Am. St. 626, 22 S.W. 794; Littleton v. Richardson, 34 N.H. 179, 66 Am. Dec. 759; Port Jervis v. Port Jervis First Nat. Bank, 96 N.Y. 550; City of Seattle v. N. P. Ry. Co., 47 Wash. 552, 92 P. 411.)

The lease of the whole of a building and of the cellar under it includes a lease of the excavation under the sidewalk through which the cellar is reached, and also of the doors over that excavation. (Boston v. Gray, 144 Mass. 53, 10 N.E. 509; Wasson v. Petit, 117 N.Y. 118, 22 N.E. 566, 5 L. R. A. 794; Rider v. Clark, 132 Cal. 382, 64 P. 564.)

A landlord is not liable for damages resulting from the dangerous condition of leased premises, unless the premises were in a dangerous condition when leased, or the duty of keeping them in repair rests upon him. (Ahern v. Steele, 115 N.Y. 203, 12 Am. St. 778, 22 N.E. 193, 5 L. R. A. 449; City of Lowell v. Spalding, 58 Mass. 277, 50 Am. Dec. 775; Fisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 422; Johnson v. McMillan, 69 Mich. 36, 36 N.W. 803; Ward v. Hinkleman, 37 Wash. 375, 79 P. 956; City of Peoria v. Simpson, 110 Ill. 294, 51 Am. Rep. 683; Lindstrom v. Penn. Co. etc., 212 Pa. 391, 61 A. 940.)

Fred E. Butler, Eugene A. Cox and Isham N. Smith, for Respondent.

"A municipal corporation which has been compelled to pay the judgment recovered against it for damages sustained by an individual by an obstruction, defect or excavation in the sidewalk or street of such corporation, has an action over against the person who negligently or unlawfully created the defect that caused the injuries." (Canandaigua v. Foster, 156 N.Y. 354, 66 Am. St. 575, 50 N.E. 971, 41 L. R. A. 554; Brooklyn v. Brooklyn Street Ry. Co., 47 N.Y. 475, 7 Am. Rep. 469; Pine Hill Coal Co. v. Harris, 7 Ky. Law, 519; 1 Jaggard on Torts, par. 69; Rochester v. Campbell, 123 N.Y. 405, 20 Am. St. 760, 25 N.E. 937, 10 L. R. A. 393; Minneapolis Milling Co. v. Wheeler, 31 Minn. 121, 16 N.W. 698; 1 Parsons on Contracts, 4th ed., p. 36; Village of Carterville v. Cook, 129 Ill. 152, 16 Am. St. 250, 22 N.E. 14, 4 L. R. A. 721; Farwell v. Becker, 129 Ill. 261, 16 Am. St. 267, 21 N.E. 792, 6 L. R. A. 400; Old Colony Ry. Co. v. Slavens, 148 Mass. 363, 12 Am. St. 558, 19 N.E. 372; Sherwood v. Dunbar, 6 Cal. 53; Richter v. Henningsan, 110 Cal. 530, 42 P. 1077; 2 Smith's Modern Law of Mun. Corp., sec. 1305.)

A landlord cannot, under any circumstances, by any kind of a lease, relieve himself of the obligation which he owes to the public. (Jessen v. Sweigert, 66 Cal. 182, 4 P. 1188.)

Isaman could not substitute his tenant as an obligee under this contract. (Swords v. Edgar, 59 N.Y....