Russell v. Sincoe Realty Co.

• Decision Date: 07 April 1922
• Docket Number: No. 22478.,22478.
• Citation: 293 Mo. 428,240 S.W. 147
• Parties: RUSSELL v. SINCOE REALTY CO.
• Court: Missouri Supreme Court

240 S.W. 147

293 Mo. 428

RUSSELL v. SINCOE REALTY CO.

No. 22478.

Supreme Court of Missouri, Division No. 2.

April 7, 1922.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by Cynthia Russell against the Sincoe Realty Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Hogsett & Boyle, of Kansas City, for appellant.

R. D. Groves and Miller, Camack, Winger & Reeder, all of Kansas City, for respondent.

WHITE, C.

In the circuit court of Jackson county a demurrer was sustained to the plaintiff's petition. She declined to plead further, judgment for defendant was accordingly entered, and the plaintiff thereupon appealed to this court.

The action is for personal injuries. The petition states that the defendant corporation was the owner of a certain lot in Kansas City, described; that a sidewalk runs alongside the property, and was much frequented by pedestrians, a fact well known to the defendant; that at all the times mentioned in this action a certain ordinance known as section 563, Revised Ordinances of Kansas. City, was in force and effect, as follows:

"Section 563. Snow, etc.—Repairs. It shall be the duty of all persons owning or occupying any real property fronting upon any street to keep the sidewalk, curbing and guttering in front and alongside of said property and on the same side of the street in good repair and order, and to clean the same, and remove from any such sidewalk, curbing and guttering all ice, snow, earth or other substance that in any wise obstructs or renders the same dangerous, inconvenient or annoying to any person."

It is alleged that on December 10, 1919, plaintiff was walking north on said sidewalk alongside the property described, and, while in the exercise of due care for her own safety, "by reason of the ice, snow, and sleet, which the defendant, its agents, servants, and employees, had negligently allowed to accumulate, be, and remain on said sidewalk, she was caused to fall on said sidewalk, and as a direct result thereof she was injured in the manner hereinafter set forth."

The petition then sets out the character of the injuries received by plaintiff, and demands judgment for the sum of $10,000. Thedefendant demurred on the ground that thepetition did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, with result as stated.

I. The plaintiff with commendable directness thus states the issue:

"This case presents the sole proposition" whether or not the violation of the ordinance referred to can be made the basis of a civil action for damages by one injured ag a direct. result of such violation."

The following passage from Shearman &. Redfield on Negligence, section 343, is quoted with approval by this court in the case of Ford v. Kansas City, 181 Mo. 137, loc. cit. 147, 79 S. W. 923, 926:

"An abutting owner, as such, owes no duty to maintain the street or sidewalk in front of his premises, and is not responsible for any defects therein which are not caused by his own. wrongful act. * * * The fact that he violates a city ordinance, which requires abutting owners to remove snow and ice from the sidewalk in front of their premises within a certain time after their accumulation, does not render-him liable to one injured by falling upon such snow and ice, nor to the city which had suffered judgment for the same injury."

The passage quoted states the law as determined by this court in numerous cases. Norton v. City of St. Louis, 97 Mo. 537, 11 S. W. 242; City of St. Louis v. Conn. Mut. Life Ins. Co., 107 Mo. 92, 17 S. W. 637, 28 Am. St. Rep. 402; Baustian v. Young et al., 152 Mo. 317, 53 S. W. 921, 75 Am. St. Rep. 462; Hilliard v. Noe (Mo. App.) .198 S. W. loc. cit. 436; 19 R. C. L. § 180, p. 880.

A city is under obligation to keep its streets and sidewalks in safe condition for travel, and if for any reason they become out of repair and are rendered dangerous by obstruction, defects, or accumulations of snow and ice the city, where it has had notice of the condition, is liable to any person for injury caused by such condition. The appellant concedes the rule just mentioned frequently has been recognized and applied by this court, but earnestly insists that where the owner of adjacent property is affected' by an ordinance, such as the one pleaded, he also is liable for injuries caused by his failure to obey such ordinance. The argument runs this way: In the exercise of certain. police powers a municipality has authority to pass ordinances regulating the conduct of individuals. An ordinance requiring a property owner to remove snow and ice from the sidewalk adjacent to his premises, like an ordinance forbidding an obstruction in the street or sidewalk, or regulating the speed of vehicles on the street, is a proper exercise of police power. It has been held in several cases that a speed ordinance, an ordinance requiring an owner who is erecting a building adjacent a sidewalk to cover the sidewalk for the protection of pedestrians, are ordinances passed in the exercise of police power possessed by a municipality. Violation of such an ordinance which results in injury renders the person violating it liable in damages to the person injured. Now, since the ordinance requiring the removal of snow and ice from the sidewalk in front of an owner's premises is a police regulation, a failure to obey the ordinance which results in injury to a pedestrian passing on the sidewalk renders the owner of the property liable. The argument is presented with clearness and force, and illustrated by the citation of many authorities.

It proceeds, however, upon the theory that the only distinction between an ordinance, the violation of which would render the violator liable to one injured by it, and one on which there would be no liability, is that the first is a police regulation, and the other is not. In other words, every one who violates a police regulation, by which violation an injury ensues, incurs liability because it is a police regulation violated.

It will be noticed in the passage noted from Shearman & Redfield that an abutting property owner is not responsible for a defect in a sidewalk unless it is caused by his own wrongful act. If one places an obstruction on a sidewalk and...