Sewall v. Fox

Decision Date18 June 1923
Docket NumberNo. 71.,71.
Citation121 A. 669
PartiesSEWALL et al. v. FOX et al.
CourtNew Jersey Supreme Court

Appeal from Supreme Court.

Action by Jessie B. Sewall and husband against D. Alvin Fox and another. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

McDermott, Enright & Carpenter, of Jersey City (James D. Carpenter, of Jersey City, of counsel), for appellants.

Porter, Zink & Lafferty, of Newark (James L. R. Lafferty, of Newark, of counsel), for respondents.

KALISCH, J. An action was brought in the court below by the plaintiffs against the defendants to recover damages for injuries sustained by Jessie B. Sewall, wife of Elbridge C. Sewall, as a result of a fall caused by slipping on snow and ice which had accumulated, through the natural state of winter weather, on a sidewalk in front of premises owned and occupied by the defendants.

The first count of the plaintiffs' complaint is based upon an ordinance of the town of Montclair entitled, "An ordinance to provide for the removal of snow and ice from the sidewalks and gutters of streets, avenues and highways in the town of Montclair," adopted December 23, 1912, the first section of which provides that—

"The owner, owners, occupant or occupants of premises abutting or bordering upon any street, avenue or highway in the town of Montclair shall remove ail ice or snow from the sidewalks of any such street, avenue or highway, or in the case of ice which may be frozen to the sidewalks as to make the removal of the same impossible, shall cause same to be thoroughly covered with sand or ashes, within eight hours of daylight after the same shall be formed or shall fall thereon, under a penalty of five dollars for each such failure, to be paid by said owner or owners, occupant or occupants of said premises, severally and respectively."

The complainant after setting out the section, omitting the penalty prescribed, then alleges the failure of the defendants to comply with the requirements of the ordinance and charges them with carelessly and negligently permitting the snow and ice to remain upon the sidewalk, whereby, etc., the plaintiff Jessie B. Sewall sustained her injury.

The second count of the complaint is based upon the assumption that it was a common-law duty of the defendants to keep the sidewalk in front of their residence free and clear of ice and snow and to spread ashes, sand, and sawdust and other like substances upon the ice on the sidewalk for the safety of persons lawfully using the side-walk.

After the trial of the cause had commenced, the plaintiffs offered to prove the ordinance in question and the facts alleged in the complaint; but the question, as to the plaintiffs' right to recover, assuming all of plaintiffs' allegations were true, was raised by the learned trial judge who overruled the plaintiffs' offer, whereupon the plaintiffs rested their case, and a motion for nonsuit was then made on behalf of defendants, which motion was granted and judgment entered thereon. It is from this judgment that the plaintiffs appeal to this court.

The common law imposed no duty upon an abutting owner on the highway to keep the sidewalk in front of his premises free from snow or ice. Snowden v. Dodd, 8 N. J. Law Journal, 296 (opinion by Judge Depue, Essex Circuit), who cites as sustaining this proposition Taylor v. Lake Shore R. R. Co. 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457 (opinion by Cooley, J.). In Courtney v. Central R. R. Co., 18 N. J. Law Journal, 173, Van Syckel, J., said:

"An abutting owner on the highway as such owes no duty to maintain the street or sidewalk in front of his house or premises, and is not responsible for any defects therein which are not caused by his own wrongful act. 2 Sherman and Redfield on Negligence, p. 343; Ray on Negligence of Imposed Duties, p. 68; Wood on Nuisances, p. 994-5; Weller v. McCormick, 18 Vr. 397."

The learned judge further said:

"Ordinance requiring persons to keep their sidewalks free from ice imposes a purely public duty and persons injured by slipping on the ice cannot bring private action against the owners of...

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31 cases
  • Yanhko v. Fane
    • United States
    • New Jersey Supreme Court
    • July 7, 1976
    ...the well settled rule that snow removal ordinances create no civil liability, absent an express provision therefor, Sewall v. Fox, 98 N.J.L. 819, 121 A. 669 (E. & A. 1923), this court affirmed the trial court's dismissal of plaintiff's The basic rationale underlying the decisions just cited......
  • Davis v. Pecorino
    • United States
    • New Jersey Supreme Court
    • December 15, 1975
    ...public sidewalk adjoining his premises. Foley v. Ulrich, supra; Brown v. Kelly, 42 N.J. 362, 200 A.2d 781 (1964); Sewall v. Fox, 98 N.J.L. 819, 121 A. 669 (E. & A. 1923); Saco v. Hall, supra, 1 N.J. at 381, 63 A.2d 887. Nor does he have an obligation to maintain that sidewalk, for he is not......
  • Skupienski v. Maly
    • United States
    • New Jersey Superior Court — Appellate Division
    • November 12, 1957
    ...to construct such pipe and drain for the purpose of carrying the water into the gutter of the street (Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A.L.R. 1357 (E. & A.1923); but, if it voluntarily assumed to do so, it was bound to use reasonable care to maintain the pipe and drain in such a......
  • Foley v. Ulrich, A--945
    • United States
    • New Jersey Superior Court — Appellate Division
    • March 30, 1967
    ...from the property owner to (the pedestrian).' Brown v. Kelly, 42 N.J. 362, 363, 200 A.2d 781, 782 (1964); Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A.L.R. 1357 (E. & A.1923). Implicit in my brethren's opinion is an acknowledgment that if defendants, as abutting landowners, had made no ef......
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