Udkin v. City of New Haven

• Citation: 80 Conn. 291,68 A. 253
• Court: Supreme Court of Connecticut
• Decision Date: 17 December 1907
• Parties: UDKIN v. CITY OF NEW HAVEN.

68 A. 253

80 Conn. 291

UDKIN

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

Dec. 17, 1907.

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge.

Action by Ida Udkin against the city of New Haven. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

The plaintiff, while traveling over one of the sidewalks in the defendant city, at about 7 o'clock in the evening, slipped and fell by reason of the then icy condition of the walk, thereby sustaining the injuries for which she sued. The premises in front of which she fell were covered by a building which came to the street and sidewalk line, save that at one end of the lot there was an open space or areaway leading to a side entrance of the building. The strip of ice upon which the plaintiff fell was immediately in front of the areaway, and extended across the walk; it being about five or six feet in width at the middle of the walk, and about ten feet at the curb. Some of the ice had been thereon for a number of days, and some was caused by the freezing of the water which flowed from the melting snow in the areaway, and of that which discharged thereon from a leader pipe upon the building, and thence passed out upon the walk. It was the habit of the occupants of the building, whenever there was a heavy fall of snow, to shovel a portion of the same from the roof and sidewalk into the areaway. The leader pipe referred to was upon the side wall of the building, a few feet back from the sidewalk, and was designed to carry off the water which gathered upon the roof. It discharged near the ground upon the surface of the areaway. Its position and use was apparent, and had continued for some time. The finding states a variety of facts concerning the formation, character, and continuance of the ice in question, the care bestowed upon the walk, and the character of the weather for a period of time preceding the accident, which, as they have no importance as bearing upon the aspect of the case discussed, need not be here rehearsed. As bearing upon the situation produced by the leader pipe and melting snow, as recited, and their contribution to the conditions which caused the plaintiff's fall, the court finds that "it did not appear in evidence that means were provided for draining the vacant space referred to, but it did appear that when snow melted in such place, or water was discharged from the leader thereon, the water went naturally out upon the sidewalk across the same in a slightly diagonal direction toward the east and toward the gutter," and that all the facts and conditions referred to were well known to the officers of the city. The conclusion reached by the court upon the facts is stated to be "that the defendant had notice and knowledge of the slippery and dangerous condition of the sidewalk and of the other conditions referred to, * * * and that the defendant was negligent in not removing the ice from the sidewalk, or causing said sidewalk to be made reasonably safe by the sprinkling of sand or other substance on the icy portions thereof, and also in permitting the continued existence of the foregoing described conditions." Two of the defendant's claims of law were as follows: (1) That the defendant had no opportunity or power to prevent the running of the water upon the walk in the manner stated, and could not be held liable for its failure to prevent it; (2) that the defendant had no opportunity or power to enter upon the premises and abate the conditions existing thereon, as stated. These claims were expressly overruled.

Leonard M. Daggett and James Kingsley Blake, for appellant. George E. Beers and Charles L. Brooks, for appellee.

PRENTICE, J. (after stating the facts as above). It is apparent from the record that the rule of duty which the court imposed upon the defendant in its care of the icy walk in question was one that required it to deal, not only with conditions within the highway and with conditions without it by means to be employed within it, but also with conditions without it, and upon private lands by means and measures to be there directly applied. The defendant claimed that it had no power to go upon the premises of private owners to change conditions there which were conducive to the formation of ice upon the walk in question, and that, therefore, no duty to do so was cast upon it, since, where there was no power, there could be no duty. The court held that the defendant had such power, and that its reasonable care of the street involved the reasonable exercise of that power. It needs no argument to disclose the harmfulness to the defendant of this ruling, if incorrect, as it does not to reveal the grave consequences to municipal corporations charged with the repair of highways and to private property owners alike which are involved in it.

Counsel for the plaintiff earnestly urge upon us the correctness of the ruling. The argument advanced in support of this contention consists of the assertion of the proposition that the defendant city possessed the power, both independently of its charter and under the grant of power therein, to abate the outside conditions recited in the finding, as public nuisances. It is clear that the leader and accumulated snow in question did not constitute nuisances per se, and that therefore, the power to abate them did not inhere in the defendant as a public corporation. Its charter contained a delegation to its common council of the power to adopt orders and resolutions and enact ordinances to prevent nuisances, and summarily abate them at the expense of the person maintaining them. This granted power to declare nuisances and provide for their abatement, although unlimited in terms, is not unlimited in law. Yates v. Milwaukee, 10 Wall. (U. S.) 497, 19 L. Ed....