Cincinnati v. Renner

23 Ohio C.C. Dec. 189, 13 Ohio C.C. (n.s.) 407, 1910 Ohio Misc. LEXIS 283

• Court: Hamilton Circuit Court
• Decided: December 3, 1910
• Status: Published

Opinion

SWING, J.

This was an action in the court of common pleas by Anna M. Renner against the city of Cincinnati for damages for an injury to said plaintiff. The gist of the action is thus set forth in the petition:

“That on the third day of February, 1905, the defendant had wrongfully permitted the water.from one of its pipes of its water works system to run out and over the sidewalk * * * and to become frozen on said sidewalk so as to make a coating of ice on said sidewalk, and to make said sidewalk dangerous to persons lawfully using the same, and of which dangerous condition of said sidewalk the defendant had due notice * * * and while ' plaintiff was lawfully passing along said sidewalk, not knowing its dangerous condition, she slipped upon the ice on said sidewalk.” # # *

There is really no conflict in the evidence. In brief it is as follows: One of the water pipes of the city, in Hamilton avenue, burst, by reason of which the water from said pipes overflowed the immediate sidewalk and became frozen on said sidewalk, and the plaintiff walking on the same slipped and fell and broke her leg.

Within an hour or so after the pipe burst the city had a gang of men repairing the pipe in the street, but took no means to remove the water that had flowed onto the sidewalk; nor did the city use any means to notify persons using said sidewalk that the same was dangerous. There was no defect in the sidewalk. There was no evidence to show that the city had notice of the ice on the sidewalk and the ice did mot form until a few hours before the accident. The jury found that the city shut off the water in a reasonable time and that the break in the water main was not caused by any negligence of the city. The water was caused to flow on the sidewalk by the bursting of the pipe. •

It follows, therefore, that if the plaintiff can recover on the ground of negligence on' the part of the city, that it must be from the negligence of the city, if any, in permitting the water to remain on the sidewalk and become frozen. ' The evidence does not show that the city had actual notice of the icy condition of the sidewalk, or that it was dangerous to foot travel; nor do we think that under the circumstances of this ease that the city was bound to know of its condition. From these conclusions it'follows that no recovery can be had against the city on the ground of negligence.

In argument in this court counsel for Mrs. Renner said that they based their ground for recovery on the principles -announced in the case of Fletcher v. Rylands, 3 Eng. & Ir. App. 330. In referring to this case Bradbury, Judge, in Defiance Water Co. v. Olinger, 54 Ohio St. 539 [44 N. E. Rep. 238; 32 L. R. A. 736], quotes with approval from Blackburn, J., the following, as showing the true principle on which that decision rests :

“We think the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. ’ ’

We are not aware that this principle has been applied to a case of this kind. No decision has been cited to us and we have not been able to find any in which a municipal corporation has been held answerable in damages except on the ground of negligence.

The Supreme Court of Ohio has quoted with approval.the following from Wharton, Negligence Sec. 869:

“When the legislature has sanctioned and authorized the use of a particular thing and it is used for the purpose for which it was authorized and every precaution has been observed to prevent injury, the sanction of the legislature carries with it this consequence, that if damage results from the use of such thing independently of negligence, the party using it is not responsible.”

Mr. Wharton quotes the above language from the opinion of Lord Cockburn in the case of Vaughan v. Railway, 5 H. & N. 685. No further authority need be quoted by us t'o sustain- this ■ proposition. If it were not the law we may assume that it would not have been so stated by Mr. Wharton.

The legislature authorized the]city of Cincinnati to construct and maintain water pipes in the streets of the city, and it can only be answerable in damages for their construction and maintenance by reason of some negligent act committed or omitted. No negligence having been shown, the court should have directed a verdict for the city at the conclusion of the evidence.

Judgment reversed and judgment for the city.

Giffen and Smith, JJ., concur.