City of Lincoln v. Janesch
| Decision Date | 06 February 1902 |
| Docket Number | 11,111 |
| Parties | CITY OF LINCOLN v. EDWARD JANESCH |
| Court | Nebraska Supreme Court |
ERROR from the district court for Lancaster county. Tried below before CORNISH, J. Affirmed.
AFFIRMED.
Joseph R. Webster, John P. Maule and E. C. Strode, for plaintiff in error.
Stephen B. Pound and Roscoe Pound, contra.
The action was brought by the city of Lincoln against Edward Janesch in the district court of Lancaster county and was grounded upon the alleged failure of defendant to repair a sidewalk on a public street adjoining his lot. The petition in substance avers that the sidewalk contiguous to defendant's property had become defective and that it was defendant's duty to repair it; that this duty was neglected; that, by reason of the defect in the walk, one Solomon Greenstone sustained an injury, on account of which he sued the city and recovered judgment. The court held, on demurrer, that these facts were not sufficient to constitute a cause of action and gave judgment on the merits in favor of defendant. It is not claimed that the facts pleaded show that Janesch was guilty of affirmative negligence such as would according to the principles of the common law, make him liable to Greenstone, or liable over to the city; but it is insisted that a right of action for passive negligence is expressly given by the following provision of the city charter: "It is hereby made the duty of all real estate owners and occupants to keep the sidewalk alongside, or in front of, the same in good repair and free from snow and ice, and other obstructions, and they shall be liable for all damages or injuries occasioned by reason of the defective condition of any such sidewalk." The validity of this provision, in so far as it undertakes to make the lot owner liable for all damages occasioned by reason of the defective condition of an adjacent sidewalk, is the first question discussed by counsel. It seems to be quite evident that the statute is referable to the police power of the state, and should be sustained as an exercise of that power by which both persons and property are subjected to all kinds of restraints and burdens for the convenience, comfort and safety of society. Statutes requiring owners and occupants of lots bordering on public streets to remove snow and ice from their respective sidewalks have been upheld in Massachusetts and New York. In re Goddard, 33 Mass. 504, 16 Pick. 504; Village of Carthage v. Frederick, 122 N.Y. 268, 25 N.E. 480. A contrary conclusion, however, was reached in Gridley v. City of Bloomington, 88 Ill. 554, and this conclusion was, by an almost evenly divided court, adhered to in City of Chicago v. O'Brien, 111 Ill. 532. In Reinken v. Fuehring, 130 Ind. 382, 30 N.E. 414, it was held that a statute charging upon property owners the expense of sweeping adjacent streets was valid; and in Mayor v. Maberry, 6 Humph. [Tenn.] 368, an abutter was held personally liable for the cost of laying a new sidewalk. In Wisconsin and Michigan it has been assumed, without discussion, that the duty of repairing sidewalks may be imposed on lot owners and that such owners may be held liable, according to the intention of the legislature, for all the consequences of their defaults. Hiner v. City of Fond du Lac, 71 Wis. 74, 36 N.W. 632; Morton v. Smith, 48 Wis. 265, 4 N.W. 330; Henker v. City of Fond du Lac, 71 Wis. 616, 38 N.W. 187; Woodward v. City of Boscobel, 84 Wis. 226, 54 N.W. 332; Toutloff v. City of Green Bay, 91 Wis. 490, 65 N.W. 168; Selleck v. Tallman, 93 Wis. 246, 67 N.W. 36; City of Detroit v. Chaffee, 70 Mich. 80, 37 N.W. 882; Lynch v. Hubbard, 101 Mich. 43, 59 N.W. 443. If lot owners may be required by the legislature, in the exercise of the police power of the state, to remove snow and ice from the adjacent streets, there would seem to be no very good reason why they may not be also required to remedy defects in adjacent sidewalks. The demands of public interest are no stronger in one case than in the other, and, as was said by Mr. Justice Brown in Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499, the legislature is vested with a large discretion, not only to determine what the interests of the public require, but what measures are necessary to protect such interests. Our conclusion upon this branch of the case, based upon the decisions cited and many other authorities which we have consulted, among them being Town of Macon v. Patty, 57 Miss. 378; Sands v. City of Richmond, 31 Gratt. [Va.] 571, Cooley, Taxation [2d ed.] 588; Burroughs, Taxation, 494, is that the provision of the Lincoln charter above set out was enacted for the convenience and safety of the public and is unaffected by constitutional limitations upon the power of taxation.
But while we are convinced that the provision is valid, and that it imposes a duty, primarily, for the benefit of the public, but ultimately for the advantage of the city, we are not persuaded that the petition states a cause of action, or that the judgment in favor of the defendant is wrong. The clause upon which the city relies must be read in the light of other provisions of the charter. Standing alone, and considered by itself, the clause in question would seem to impose on the lot owner the duty of determining for himself and at his peril, when and how and with what materials a sidewalk should be repaired; it would seem to confer upon him authority to take possession of the walk and turn travelers into the street whenever in his judgment repairs are needed. It is almost inconceivable, and we can not believe, that the legislature intended to commit any of these matters to the discretion of the property owner. Sections 31 and 34 of the charter, (Compiled Statutes, 1895, ch. 13a, art. 1) are as follows:
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