McCave v. City of Canton

• Citation: 140 Ohio St. 150,42 N.E.2d 762
• Decision Date: 24 June 1942
• Docket Number: 28980.
• Parties: McCAVE v. CITY OF CANTON.
• Court: Ohio Supreme Court

42 N.E.2d 762

140 Ohio St. 150

McCAVE v. CITY OF CANTON.

No. 28980.

Supreme Court of Ohio

June 24, 1942

Syllabus by the Court.

1. In the absence of a special statute, a municipality is not liable for injuries resulting from the usual and natural accumulation of snow and ice on its streets or sidewalks.

2. Section 3714, General Code, which provides that the council of a municipality shall have the care, supervision and control of public streets or sidewalks within the corporation, and shall cause them to be kept open in repair, and free from nuisance, does not change the rule above stated as to the accumulation, from natural causes, of snow and ice on such streets or sidewalks.

3. If a downspout or drainpipe is constructed from the eaves trough of a building adjoining a street in such a way, or so defectively, as to cast water upon a sidewalk within a municipality, such municipality is liable for injuries to pedestrians caused by ice resulting from the freezing of such water upon the walk, provided the municipality has notice of the presence of such ice on the sidewalk for a sufficient length of time before the injury to have cured the defect or to have prevented the injury.

4. A municipality is not chargeable with notice of a potential nuisance due to the flow of water from a drainpipe on an adjoining lot upon a street or sidewalk, unless it be shown that recurrently an icy or unsafe condition has been definitely created thereby, as distinguished from a natural accumulation of ice, for such a period as to indicate to the authorities of the municipality that such situation has a dangerous aspect and if continued would probably cause injury to pedestrians who use the street or sidewalk.

Appeal from Court of Appeals, Stark County.

Upon a house on the premises at 416 Bedford avenue, N. W., in the city of Canton, there existed for more than ten years a downspout connecting with an underground drainpipe which extended from the house to a point about six inches from the inner edge of the cement sidewalk in front of the house. The weather during the day of January 14, 1939, was clear, but warm, and water from melting snow on the roof of the house ran out of the downspout and drainpipe over and upon the sidewalk. In the evening a freezing temperature froze the water into ice which extended half way across the width of the walk. No witness saw water or ice on the sidewalk prior to plaintiff's accident.

About 7:30 o'clock in the evening, the plaintiff, in walking over the sidewalk to his home about a block away, slipped and fell on the ice opposite the drainpipe above described, as a result of which he was injured.

The sidewalk itself was properly constructed and in good condition. There was no proof of actual notice to the city of the presence of ice on the sidewalk which was approximately two miles from the center or business portion of the city.

The plaintiff filed an action against the city of Canton in the Common Pleas Court of Stark county, seeking to recover damages on account of his injury. He predicated his right to recover on the ground that the city was guilty of maintaining a nuisance in allowing to exist for a long period of time the downspout and drain through which water was conducted and thrown on the sidewalk on the evening in question, which water froze and caused an unnatural accumulation of ice upon which he slipped and was injured.

The jury returned a verdict for the plaintiff in the sum of $1,800. At the close of plaintiff's opening statement of his case to the jury, at the close of plaintiff's evidence and at the close of the case, defendant moved for a directed verdict, which motions were overruled. After the verdict, motions of the defendant for judgment notwithstanding the verdict and for new trial were filed and overruled. Judgment was then entered for the plaintiff.

An appeal was taken to the Court of Appeals which court affirmed the judgment of the trial court. The case is now in this court for review by reason of the allowance of the defendant's motion to certify the record from the Court of Appeals.

Paul G Weber, City Sol., of Canton, for appellant.

Anderson & Lamb and Russell G. Mock, all of Youngstown, for appellee.

HART, Judge.

The questions presented by the record in this case are: (1) Where a sidewalk itself is in good repair, under what circumstances can a municipality be held liable for damages to a pedestrian caused by his falling upon ice formed on such sidewalk from water which was emitted from a drainpipe on the adjoining private property? (2) Since liability, if any, is dependent upon notice to the defendant city, must such notice relate to the presence of the particular ice on the sidewalk upon which plaintiff slipped and fell, or may such notice arise from the existence of the drainpipe which carried the water upon the sidewalk where it froze, causing plaintiff's fall and injuries?

It is a general rule that, in the absence of a special statute, a municipality is not liable for injuries resulting from the usual and natural accumulation of snow and ice on its streets and sidewalks. The law does not require what is unreasonable. It does not condemn an act or omission as negligent which can be done or prevented only by the exercise of extraordinary exertion or by the expenditure of extraordinary sums of money. The reasons for the rule above stated are that a municipality should not be required by law to remove from the miles of sidewalk within its limits the natural accumulation of ice and snow, because such a requirement is impracticable from the nature of things, and when these conditions exist they are generally obvious so that travelers know of them and assume the risk. Chase v. City of Cleveland, 44 Ohio St. 505, 9 N.E. 225, 58 Am.Rep. 843; City of Norwalk v Tuttle, 73 Ohio St. 242, 76 N.E. 617; Berger v. Salt Lake City, 56 Utah 403, 191 P. 233, 13 A.L.R. 5, citing the two previously cited Ohio cases; Graham v. City of Chicago, 346 Ill. 638, 178 N.E. 911; Hopson v. City of Detroit, 235 Mich. 248, 209 N.W. 161, 48 A.L.R. 1150; Bailey v. Oil City, 305 Pa. 325, 157 A. 486, 80 A.L.R. 1148; Harrington v. City of Buffalo, 121 N.Y. 147, 24 N.E. 186; Dapper v. City of Milwaukee, 107 Wis. 88, 82 N.W. 725; Reedy v. St. Louis Brewing Ass'n, 161 Mo. 523, 61 S.W. 859, 53 L.R.A. 805.

Section 3714, General Code, among other things, provides: 'The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.' But this statute does not change the general rule above stated as to accumulation, from natural causes, of snow and ice on streets or sidewalks. Chase v. City of Cleveland, supra, 44 Ohio St. at page 513, 9 N.E. 225, 58 Am.Rep. 843.

A different rule is applied where the ice or snow accumulates wholly or in part through the fault of the municipality, as where, because of a defect in a sidewalk, ice is caused to form which would not otherwise do so (Evans v. City of Concordia, 74 Kan. 70, 85 P. 813, 7 L.R.A., N.S., 933; Holbert v. City of Philadelphia, 221 Pa. 266, 70 A. 746, 20 L.R.A.,N.S., 201; Jackson v. City of Grand Forks, 24 N.D. 601, 140 N.W. 718, 45 L.R.A., N.S., 75; Noonan v. City of Stillwater, 33 Minn. 198, 22 N.W. 444, 53 Am.Rep. 23), or where the formation of ice on a sidewalk is due to the failure of a municipality to prevent the overflow of water or to repair a leaking hydrant. Decker v. Scranton City, 151 Pa. 241, 25 A. 36, 31 Am.St.Rep. 757.

These exceptions to the general rule grow out of the fact that a municipality in this state has exclusive control of its streets and public ways and is responsible for their good condition. When at fault in this regard, the municipality incurs the responsibility placed upon it by the provisions of Section 3714, General Code, above quoted. And since the liability of a municipality for injuries resulting from defects and obstructions in its streets and public ways is predicated upon the neglect of the municipality to remove such defects or obstructions, or to guard against injury therefrom, after actual or constructive notice of their existence, it is immaterial that the defects or obstructions may have been originally caused, not by the municipality itself, but by trespassers or wrongdoers. City of Ironton v. Kelley, 38 Ohio St. 50; Lawrence v. Scranton City, 284 Pa. 215, 130 A. 428, 41 A.L.R. 454; McDowell v. Village of Preston, 104 Minn. 263, 116 N.W. 470, 18 L.R.A.,N.S., 190; Cohen, Adm'rs, v. Mayor of New York, 113 N.Y. 532, 21 N.E. 700, 4 L.R.A. 406, 10 Am.St.Rep. 506.

The fact that an abutting property owner may be required by law to keep the sidewalk in front of his premises in good repair and free from defects and obstructions does not operate to relieve the municipality of liability for injuries resulting from such defects or obstructions. Wilhelm v. City of Defiance, 58 Ohio St. 56, 50 N.E. 18, 40 L.R.A. 294, 65 Am.St.Rep. 745.

Consequently, by the weight of authority, it is a general rule that if a downspout or drainpipe is constructed from the eaves trough of an adjoining building in such a way or so defectively as to cast water upon a sidewalk within a municipality, such municipality is liable for injuries to pedestrians caused by ice resulting from the freezing of such water upon the walk, provided the municipality has notice of the presence of such ice on the sidewalk for a sufficient length of time before the injury to have cured the defect or to have prevented the injury. Berger v. Salt Lake City, supra;...