Gardner v. Rhodes

• Decision Date: 12 March 1902
• Citation: 41 S.E. 63,114 Ga. 929
• Parties: GARDNER v. RHODES.
• Court: Georgia Supreme Court

41 S.E. 63

114 Ga. 929

GARDNER

v.RHODES.

Supreme Court of Georgia.

March 12, 1902.

LIABILITY OP LANDLORD—NEGLIGENCE OF TENANT—ICE ON SIDEWALK. A landlord is not liable for injury received by a person from falling on ice which had been allowed by the tenants to accumulate and remain on a sidewalk abutting the rented premises. This is true, though the ice resulted from water which had flowed from the landlord's property through a ditch placed there for the purpose of carrying off the refuse water across the sidewalk; the ice not being on the sidewalk when the tenants entered into possession, although the ditch was on the property at that time, and put there for the purpose above indicated. (Syllabus by the Court.)

Error from city court of Atlanta.

Action by J. M. Gardner against A. G. Rhodes. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Burton Smith, for plaintiff in error.

Dorsey, Brewster & Howell, for defendant in error.

COBB, J. Gardner sued Rhodes for damages. At the trial a nonsuit was granted, and this is the error assigned in the bill of exceptions. The substance of the allegations of the petition is as follows: The defendant is the owner of certain real estate In the city of Atlanta, abutting on a sidewalk. On January 31, 1900, petitioner was injured by falling upon ice which had formed on the sidewalk in front of the defendant's property. The presence of this ice at this place was due to the following conditions: There is a ditch or drain located on the defendant's property, and running across the same to the sidewalk. This ditch had been there for many years, and was there when the defendant rented the property to certain washerwomen, who were in possession at the time the petitioner was injured. Near the head of the ditch there were two water-closets and two hydrants, from which hydrants the washerwomen drew water. They pour the refuse water upon the ground, and it runs into the ditch and across the sidewalk. The ditch was made to receive, and necessarily does receive, and for many years has received, the water from the running or overflow of the hydrants, and from the refuse water of the washerwomen, and from any defect, clogging, or overflow of the water-closets. The property of the defendant Is higher than the sidewalk, and the water flowing into the ditch discharges across the sidewalk. On the day the plaintiff was injured, and for many days previous thereto, water discharged upon the sidewalk in the manner above indicated had become frozen. The Ice so formed was uneven on its surface, rendering the sidewalk dangerous to pedestrians. On these facts, the plaintiff charges that the effect of making the ditch was to create a nuisance, by the continuous discharge of water across the sidewalk, and by the freezing of such water on the sidewalk, and also that the defendant negligently maintained the ditch, and negligently permitted water to run across the sidewalk, and negligently permitted ice to remain on the sidewalk. It is alleged that plaintiff was free from fault, and different items of damage are set out, which are alleged to have resulted from specified injuries. The petition further charged that the maintenance of the ditch, and the consequent overflow of water upon the sidewalk, was a violation of a city ordinance of Atlanta, which provided that "any person who shall throw or discharge from any lot or building any water or fluid substance so as to affect injuriously any street, lane, alley, way or sidewalk in said city shall on conviction" be fined, etc. The defendant answered, admitting that he owned the property; that a ditch or drain as described in the petition was located on the property when the same was rented to certain tenants, who were in possession at the date of the plaintiff's alleged injury. The defendant also admitted the presence of the water-closets and hydrants at the head of the ditch, that the tenants pour refuse water upon the ground, that this water runs into the ditch and across the sidewalk, and that the ditch was made for the purpose of receiving this water. He denied that he had damaged the plaintiff; denied that the ditch, and the discharge of water therefrom onto the sidewalk, and its freezing thereon, constituted a nuisance; and denied that he had negligently maintained the ditch, and negligently permitted the water to flow therefrom onto the sidewalk and freeze. The above summary of the petition and answer shows that the only material questions about which the parties were at Issue were as to whether the ditch, and the flow of water therefrom, and the formation of ice upon the sidewalk, constituted a nuisance, and whether, if so, the defendant could be chargeable with negligence for maintaining the same.

We think it can be conceded, for the purposes of this case, that the formation of the ice on the sidewalk, and the overflow of water from the ditch, and even the ditch itself, all taken together, amounted to a nuisance which was being maintained on the defendant's premises and the abutting sidewalk. This nuisance was, however, the result of theacts of the defendant's tenants, who were in exclusive possession of the premises; and under such circumstances the landlord cannot be held liable...