Hanley v. Fireproof Bldg. Co.

• Decision Date: 26 January 1922
• Docket Number: No. 21849.,21849.
• Citation: 186 N.W. 534,107 Neb. 544
• Parties: HANLEY v. FIREPROOF BLDG. CO.
• Court: Nebraska Supreme Court

107 Neb. 544

186 N.W. 534

HANLEY

v.FIREPROOF BLDG. CO.

No. 21849.

Supreme Court of Nebraska.

Jan. 26, 1922.

Syllabus by the Court.

The law of this state imposes upon the various municipal corporations thereof the duty of at all times keeping their streets and sidewalks in a reasonably safe condition for travel by the public.

Under the common law no duty devolved upon an abutting owner to keep the sidewalks adjacent to his property in a safe condition.

Where the provisions of an ordinance impose upon property owners the performance of a part of the duty of the municipality to the public and are for the benefit of the municipality as an organized government, and not for the benefit of the individuals comprising the public, a breach of such ordinance is remediable only at the instance of the municipal government, and no right of action accrues to an individual citizen especially injured thereby.

Appeal from District Court, Douglas County; Leslie, Judge.

Action by Roxina Cullen Hanley against the Fireproof Building Company. Cause dismissed, and judgment rendered for the defendant. Motion for new trial overruled, and the plaintiff appeals. Affirmed.Crofoot, Vinsonhaler, Fraser, Connolly & Stryker, of Omaha, for appellant.

Kennedy, Holland, De Lacy & McLaughlin, of Omaha, for appellee.

Heard before LETTON, DEAN and ALDRICH, JJ., and DILWORTH and E. P. CLEMENTS, District Judges.

E. P. CLEMENTS, District Judge.

This is an action brought by the appellant against the appellee to recover damages resulting from personal injury. The plaintiff in her amended petition alleges in substance that the defendant owned an apartment house at the northwest corner of Eighteenth and Dodge streets in the city of Omaha; that section 17 of Thomas' Revised Ordinances of Omaha made it the duty of owners of property to remove such ice and snow as may fall and accumulate upon sidewalks adjacent and contiguous to their property within six hours after the cessation of any storm or fall of snow; that prior to the 8th day of January, 1920, the defendant had constructed cement sidewalks along said building and parallel with said Dodge and Eighteenth streets; that the sidewalk adjoining this apartment house on Dodge street slopes sharply to the east; that on or about said 8th day of January, 1920, the plaintiff was a tenant of defendant and was living in said apartment; that prior to said day snow and ice had fallen and accumulated on this sidewalk; that small boys used said sidewalk and the ice and snow on the same for coasting; that such use made said sidewalk dangerous to pedestrians, all of which was known to defendant; that the defendant negligently and carelessly failed to remove said snow and ice as required by law; that on or about said 8th day of January, 1920, plaintiff left said apartment and went upon said sidewalk, and while on said sidewalk was violently run into and against by a sled used by a small boy coasting down said sidewalk, and she was thrown to the ground and injured. Then follow allegations as to the extent of plaintiff's injuries and damage, and prayer for judgment.

In view of the disposition of the case by the trial judge it will be unnecessary to fully set out the allegations of defendant's answer. The defendant says, among other things, that the plaintiff cannot maintain an action against it for the reason that her cause of action, if any, is against the city of Omaha, and that the amended petition does not state a cause of action and demurs to each and every allegation therein contained. Trial was had to a jury November 20, 1920. At the close of plaintiff's evidence defendant moved the court to instruct a verdict for the defendant, and this was done. The cause was dismissed and judgment rendered for defendant. A motion for a new trial was overruled, and plaintiff brings the cause here on appeal.

An examination of the evidence introduced by the plaintiff discloses that it fairly substantiates the allegations of her petition. It follows that the correctness of the course taken by the trial judge depends upon whether or not the petition states a cause of action.

The defendant contends that the action of the trial judge was correct for two reasons: First, because one citizen of Omaha cannot maintain an action against another citizen for injuries received upon the sidewalks of the city, and which were occasioned or contributed to by the failure to remove snow and ice in compliance with the ordinance of said city; second, because the petition on its face discloses that the failure to remove the ice and snow was not the proximate cause of plaintiff's injury. We shall find it necessary to consider only the first of these reasons.

[1][2] This precise question has never been before this court, but the following principles are well established:

“The law of this state devolves upon the various municipal corporations thereof the duty of at all times keeping their streets and sidewalks in a reasonably safe condition for travel by the public, and no municipal corporation, by any act of its own, can devolve this duty on another so as to relieve itself from a liability resulting from its failure to perform such duty.” Davis v. City of Omaha, 47 Neb. 836, 66 N. W. 859.

See, also, City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432;City of Beatrice v. Reid, 41 Neb. 214, 59 N. W. 770. Under the common law no duty devolved upon an abutting owner to keep the sidewalks adjacent to his property in a safe condition for travel. 13 R. C. L. 415, § 341.

[3] It is apparent from the foregoing that, if the plaintiff has a cause of action against the defendant by reason of the facts set out in her petition, it is by virtue of some statute, charter provision, or valid ordinance. The plaintiff in effect admits this, and in her petition pleads section 17 of an ordinance of the city of Omaha, which is as follows:

“It shall be the duty of the occupant, as well as the duty of the owner, of any lot or land or real estate in the city of Omaha to clear the sidewalks contiguous thereto of all snow and ice within six hours after the cessation of any storm or fall of snow; provided, however, if such storm or fall of snow take place and occur in the nighttime, then and in that case the owner shall have until twelve o'clock noon next following to clear said sidewalks of said snow and ice; said snow and ice shall be removed into the traveled portion of the street and so spread over the surface of the street as not to interfere with public travel thereon, and no portion thereof shall be placed or spread within three feet of the curb line on said street.”

The plaintiff in her brief has not favored us with a very clear statement of the theory by which she claims a right of action between individuals can accrue by virtue of this ordinance, and we confess that we have been unable to deduce this theory from the argument. It has been held in some jurisdictions, and has been earnestly argued by able jurists, that in a state with a Constitution like ours the Legislature cannot constitutionally delegate to a city power to enact a law that would create a right of civil action between citizens inter se. The best exposition of this doctrine is found in the dissenting opinion of Judge Marshall in the case of Sluder v. St. Louis Transit Co., 189...