McDonald v. City of Toledo

63 F. 60, 8 Ohio F. Dec. 261, 1894 U.S. App. LEXIS 2948

• Court: U.S. Circuit Court for the District of Northern Ohio
• Decided: June 23, 1894
• Status: Published

Opinion

RICKS, District -Judge.

The averments of the petition are (hat 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, drift e;el to a depth of between 4 and 5 feet; that Cherry street is one; of (he; principal streets and thoroughfare's of (he; city; that the stieel-eiar tracks on the' street ¡ire double', and occupy about 14 feel, and that the street is pave'd 44 feed, between curbs; (hat said snow bad been carelessly edeare'd from the railroad tracks hy the defendant street-railway company, and piled up in a conical mass on the* mnaining parts of the* street to the devplh of 4 to 6 feet, until it packed and froze so as to bee'ome a hard mass, mideeing said slreet elangerous; that plaintiff was driving wiih two horse's in a carriage; em Collingwood avenue from a northerly direction, and inrne'el onto Cherry street, and at said crossing e>f Collingwood avenue it beeanie; necessary to pass around a car of the Toledo Consolida!e>d Htreet Railway, which was standing on its track on Cherry slreet; that while so driving arounel said car the sen-van(s of saiel street; railway e;are;lessly started said ear, and tie noise frightened plaintiff's team so that they jumpe'd towards lie side' of saiei street, and drew plaintiff's buggy upon and over said hardened mass of snow on the westerly side of saiel street, in such manner as to overturn said buggy; that plain-tilt e*xere>ised elue care in Hie elriving, and was wir.lieiut fault, and, but fen- the existenee of saiel mass of snow piled in said street as aforesaid, he could have controlled anel sioppe;d his teem before said buggy was overturneel; Unit emch of said defendants had notice of saiel piling of snow em said street.

The; case of Chase v. City of Cleveland, 44 Ohio St. 505, 9 N. E. 225, is redied upon in support of the demurrer. In that e;ase the plaintiff fe*ll em a slippery sidewalk, made' so hy the' natural fall of snow, which froze, and ha el been smooth and slippery. The street was averreel to be a public highway within the; corporate limits, and it was charged that the city ha el, or might have hael, notice of the dangerous cemdition of saiel walk. The; walk was otherwise in good repair. The supreme court; hedd the ped ilion insufficient to show negligence. The masoning of the court is dial a fall of snow is a temporary impe'dimeni. and perhaps a danger, whiedi is frequemt in northern cities, and to impose upon a municipality the duty of removing snow or removing ice from sidewalks would he; an onerous burden, involving groat experuse, and that, unless ve;ry exceptional conditions are shown, it would not be negligence to fail to remove' such impe'diment or (tangen- from the siele'walks. It is sought to distinguish the case at: bar from the (díase Case, first, because this obstruction was in a principal thorough hire', and be'eause it was 1ho result of an unnatural and violemt storm, and there'fore the city had notice of unusual obstruction to travel that would be caused thereby. It is further insisten! that the city had notice; that this obstruction was made groa ten* and more dangerous be'eause' the street-railway company was permitted to scrape' the* snow from its tracks, anel pile it upon the stm'ts. and that said pile' of snow was permittee! to remain in the strend: for sewem days, and so froze; as to become hardened. But it is to be observed that all these unusual and exceptional conditions which are relied upon to carry notice to the city of the dangerous character of the obstructions in the street, may likewise be relied upon to carry notice to plaintiff of the dangers he might naturally expect. For, as the supreme court said in the Olíase Case, the city “is bound to exercise only ordinary care, to take such measures as are reasonably to be required and adequate in view of the ordinary exigencies.” The conditions set forth in the petition are exceptional and rare. A fall of four feet of snow in one storm is rare, even in this section. Is the city bound to remove four feet of snow from even its principal thoroughfares? There are many such in Toledo, and they are of great length. The court may take judicial notice of such facts. It would be a hardship to impose upon the taxpayers, through their city authorities, the burden of removing snow and ice resulting from such a storm within so short a period.

The averment in the petition is that the accident was caused because it was necessary (for plaintiff) to pass around a car of the Toledo Consolidated Street-Bailway Company, standing on its track on Cherry street. It is not averred that this car had stood there for a long time, or would be compelled to stand there for a long time, so as to show the necessity to drive around it. I think, in the absence of such an averment, the court is warranted in assuming that it was a stop to take on or discharge a passenger. I think this assumption ought to be rebutted by an'affirmative allegation which would show some negligence or act tending to establish negligence on the part of such defendant, because the exceptional storm which left four to five feet of snow on the street would impose upon plaintiff more care and caution in driving about the streets. In such a condition of the street, travel might be substantially suspended, and persons who persisted trying to drive over such snow banks would be charged with notice, and to observe more than ordinary care. In such conditions the driving out of the way to avoid a street car only stopping for a moment would not be “necessary.”

For these reasons, I do not think the petition states facts necessary to make out a case, and the demurrer will therefore be sustained.