Massey v. Worth

Decision Date08 March 1938
Citation197 A. 673,39 Del. 211
CourtDelaware Superior Court
PartiesWILLIAM MASSEY v. EDWARD WORTH

Superior Court for New Castle County, Action on the Case for Negligence, No. 56, March Term, 1937.

Case heard on demurrer to the plaintiff's declaration.

That declaration contained three counts, and the first count alleged, in substance:

That the defendant owned a certain dwelling house and premises on the northwest side of the State Highway, leading from Wilmington to Philadelphia, in Brandywine Hundred, New Castle County, Delaware; that there was a footway or sidewalk on the north-westerly side of the said State Highway, and along the defendant's premises; that there was a certain road or driveway leading from the State Highway in question, over and across the said footway or sidewalk into the said premises and dwelling house of the said defendant; that it was the duty of the said defendant, the owner of the said dwelling house and premises, to so use the same, and the said road or driveway leading to the said premises and dwelling house thereon, as not to endanger the use of the said footway or sidewalk by persons lawfully passing and repassing over it that on the Second day of February, A. D. 1936, the said defendant, well knowing the premises, and not regarding his duty in that behalf, and while the owner and occupant of the said dwelling and premises aforesaid, wrongfully and unjustly used, or permitted to be used, the said road or driveway leading into his said premises by the passage of vehicles along and over it, so that at the place where it crossed over the said footway or sidewalk the natural accumulation of snow on that footway or sidewalk became and "was packed down and made smooth and slippery ice"; that because of said use, the said footway or sidewalk was thereupon made slippery and dangerous for public travel, all of which was well known or should have been known, to the defendant; that on the day and year aforesaid, William Massey, the plaintiff, was then and there lawfully walking on the said footway or sidewalk and was ignorant of its dangerous condition; that by means and in consequence of the said negligent and improper conduct of the said defendant, in that respect, the said William Massey then and there slipped and fell and was injured, etc.

The second count was substantially the same as the first, except it, also, alleged that the defendant "failed to remove or abate the said dangerous or slippery condition of said footway or sidewalk, within a reasonable time after he knew, or should have known, of the creation of said dangerous and slippery condition."

The third count was, also, substantially the same as the first, except it further alleged that the defendant "wrongfully and unjustly failed to take such precautions or safeguards in the use of said road or driveway leading into the dwelling and premises, as aforesaid, at the place where such road or driveway crossed over the said footway or sidewalk, as to prevent the natural accumulation of snow upon said footway or sidewalk from being packed down and made smooth and slippery ice, by the passage of vehicles along and over" it.

The defendant demurred specially to each count of the plaintiff's declaration on several grounds, but the only ground relied on was that none of them stated a cause of action against him.

The demurrer to each count of the plaintiff's declaration is sustained.

David F. Anderson (of Ward and Gray) for plaintiff.

William H. Bennethum (of Marvel, Morford, Ward and Logan) for defendant.

HARRINGTON RICHARDS and SPEAKMAN, J. J., sitting.

OPINION

HARRINGTON, J.

This case is before us on a demurrer to the plaintiff's declaration, and the question to be determined is whether it appears from it that he has a cause of action against the defendant.

The first count of the declaration alleges, in substance, that on February 2nd, 1936, the defendant was the owner and occupant of a certain house and lot abutting on a sidewalk in and along a specified public highway; that there was then a natural accumulation of snow on that sidewalk; that the defendant's driveway, leading from his property to the public highway, crossed it, and he used and permitted that portion of the sidewalk crossed by his said driveway to be used by the passage of vehicles over it, so that the snow thereon became and was "packed down and made smooth and slippery ice"; that the plaintiff was a pedestrian using that sidewalk, and by reason of its dangerous and slippery condition, caused by the improper and negligent acts of the defendant, fell and was injured.

The second count not only alleges the same facts, but also, alleges that it was the duty of the defendant to remove or abate the dangerous and slippery condition of the said sidewalk, so caused by his use, or permitted use of it, within a reasonable time after he knew, or should have known of that condition.

The third count alleges substantially the same facts, but further alleges that the defendant failed to use precautions to prevent the natural accumulation of snow on the sidewalk in question, and its subsequent "packing down" by his use, or permitted use of it.

Generally speaking, "If an individual, whether the adjoining owner or not, or whether the fee in the public way is in himself or in the public, does any act which renders the use of the street hazardous, or less secure than it was left by the proper public authorities--as by excavations made in the sidewalks, or by unsafe hatchways left therein, or by opening or leaving open areaways in the travelled way, or by undermining the street or sidewalk--he commits a nuisance, and he is liable to any person who, while exercising due care, is injured in consequence." 3 Cooley on Torts, 4th Ed., § 452; see, also, Mullins v. Siegel-Cooper Co., 95 A.D. 234, 88 N.Y.S. 737; City of Seattle v. Puget's Sound Improvement Co., 47 Wash. 22, 91 P. 255, 12 L. R. A. (N.S.) 949, 125 Am. St. Rep. 884, 14 Ann. Cas. 1045; Louth v. Thompson, 17 Del. 149, 1 Penne. 149, 39 A. 1100.

An abutting owner or occupant of property may, therefore, be liable at common law for injuries caused by his own wrongful act in accumulating snow 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. 1018; Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A. L. R. 1357; 43 C. J. 1106.

He may, also, be liable for injuries caused by an artificial discharge of water from his premises to the sidewalk at a time when it would naturally freeze and make such sidewalk slippery and dangerous for public travel. Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L. R. A. (N.S.) 615; Aull v. Lee, 84 N.J.L. 155, 85 A. 1018; Allen v. Salmansohn, 254 Mass. 500, 150 N.E. 299.

As the plaintiff's attorney points out, a person may likewise be liable for the resulting injuries and damages, if he leaves a baggage truck on the sidewalk (Tiborsky v. Chicago, etc., R. Co., 124 Wis. 243, 102 N.W. 549), or a hose stretched across it (Lattimore v. Union E. L. & P. Co., 128 Mo. App. 37, 106 S.W. 543).

A state or county highway, including a sidewalk within its boundaries, is primarily intended for public travel, and, in fact, in most cases a dangerous condition, defect or obstruction therein, not caused by its ordinary, reasonable and usual use, as such, and which unnecessarily, materially and unreasonably interferes with its being used for the purpose for which it was intended, is a nuisance, and may make the person, causing the dangerous condition, liable in damages to a traveller injured thereby. Louth v. Thompson, 17 Del. 149, 1 Penne. 149, 39 A. 1100; Grace v. Shattuck, 35 N.H. 257, 69 Am. Dec. 536; see, also, Hitchens v. W. & P. Traction Co. et al., 3 W. W. Harr. (33 Del.) 375, 138 A. 617; State v. Peckard, 5 Del. 500, 5 Harr. 500.

But "in the absence of a statute or ordinance changing the rule, an abutting owner is not liable for injuries resulting from his failure to repair a defect in a sidewalk which he has not caused." 3 Cooley on Torts, 4th Ed., § 452; Elliott on Roads and Streets, § 898; 13 R. C. L. 321, 415; Hanley v. Fireproof Building Co., 107 Neb. 544, 186 N.W. 534, 24 A. L. R. 382, and note; Mullins v. Siegel-Cooper Co., 95 A.D. 234, 88 N.Y.S. 737; City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760.

Applying the same principles, at common law, neither the owner nor the occupant of premises, abutting on a sidewalk, was liable for injuries caused by the natural accumulation of snow or ice thereon. Pickett v. Waldorf System, 241 Mass. 569, 136 N.E. 64, 23 A. L. R. 1014; Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A. L. R. 1357; Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L. R. A. (N.S.) 615, and note; McGrath v. Misch, 29 R.I. 49, 69 A. 8, 132 Am. St. Rep. 798; Kirby v. Boylston Market Ass'n, 14 Gray 249, 74 Am. Dec. 682; 43 C. J. 1106; 13 R. C. L. 88.

Nor, under like circumstances, was such an owner or occupant required to guard against the risk of accident by sprinkling ashes on a sidewalk bordering on his property, or by taking other like precautions for the protection of the public, no matter how slippery and dangerous the sidewalk had become from its ordinary use, as such. Aull v. Lee, 84 N.J.L. 155, 85 A. 1018; Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L. R. A. (N.S.) 615, and note; Lightcap v. Lehigh Valley R. Co., 87 N.J.L. 64, 94 A. 35; 43 C. J. 1106.

We must bear in mind, also, that an owner or occupant of property along a public highway has the undoubted right to use it in a reasonable and proper manner, as a means of access to and from his property, whether he travels on foot, in vehicles or...

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7 cases
  • Massey v. Worth
    • United States
    • Delaware Superior Court
    • 8 Marzo 1938
    ... 197 A. 673 MASSEY v. WORTH. Superior Court of Delaware. New Castle. March 8, 1938. 197 A. 673 197 A. 674 Action on the case by William Massey against Edward Worth for personal injuries sustained when the plaintiff fell on a sidewalk in front of the defendant's premises allegedly because of......
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    • United States
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    • 8 Junio 1988
    ... ... Schreppler v. Mayor and Council of the Town of Middletown, 52 Del. 178, 2 Storey 178, 154 A.2d 678, 679 (1959). See also Massey v. Worth, 39 Del. 211, 9 W.W.Harr. 211, 197 A. 673, 675 (1938) (abutting owner is not liable for injuries resulting from failure to repair defect in ... ...
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    ... ... Public Service Electric & Gas Co., 115 N.J.L. 543, 181 A. 46, 47 ...         'See, also, Massey v. Worth, 9 W.W.Harr. 211, 39 Del. 211, 197 A. 673; Bamberg v. Bryan's Wet Wash Laundry, Inc., 301 Mass. 122, 16 N.E.2d 653; McDonough v. City of St ... ...
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