McDonald v. City of Toledo

• Decision Date: 23 June 1894
• Citation: 63 F. 60
• Parties: McDONALD v. CITY OF TOLEDO.
• Court: U.S. District Court — Northern District of Ohio

63 F. 60

McDONALD v. CITY OF TOLEDO.

United States Circuit Court, N.D. Ohio.

June 23, 1894

Hurd Brumback & Thatcher, for plaintiff.

C. F Watts, City Sol., for defendant.

RICKS District Judge.

The averments of the petition are that on the 12th day of February a severe and violent snowstorm prevailed in the city of Toledo, which left the snow, on or about where Cherry street and Collingwood avenue intersect, drifted to a depth of between 4 and 5 feet; that Cherry street is one of the principal streets and thoroughfares of the city; that the street-car tracks on the street are double, and occupy about 14 feet, and that the street is paved 44 feet between curbs that said snow had been carelessly cleared from the railroad tracks by the defendant street-railway company, and piled up in a conical mass on the remaining parts of the street to the depth of 4 to 6 feet, until it packed and froze so as to become a hard mass, rendering said street dangerous; that plaintiff was driving with two horses in a carriage, on Collingwood avenue from a northerly direction, and turned onto Cherry street, and at said crossing of Collingwood avenue it became necessary to pass around a car of the Toledo Consolidated Street Railway, which was standing on its track on Cherry street; that while so driving around said car the servants of said street railway carelessly started said car, and the noise frightened plaintiff's team so that they jumped towards the side of said street, and drew plaintiff's buggy upon and over said hardened mass of snow on the westerly side of said street, in such manner as to overturn said buggy; that plaintiff exercised due care in the driving, and was without fault, and, but for the existence of said mass of snow piled in said street as aforesaid, he could have controlled and stopped his team before said buggy was overturned; that each of said defendants had notice of said piling of snow on said street.

The case of Chase v. City of Cleveland, 44 Ohio St. 505 9 N.E. 225, is relied upon in support of the demurrer. In that case the plaintiff fell on a slippery sidewalk made so by the natural fall of snow, which froze, and had been smooth and slippery. The street was averred to be a public highway within the corporate limits, and it was charged that the city had, or might have had, notice of the dangerous condition of said walk. The walk was otherwise in good repair. The supreme court held the...