
    NEGLIGENCE — SIDEWALKS.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Adelia Bloom v. Toledo.
    Liability of Municipality for Injuries Caused by Accumulation of Ice in Sidewalk Depression.
    In an action against a city by a person injured .by a fall upon a sidewalk caused by ice which had accumulated in a depression therein produced by the sinking of one of the stones, the question whether such depression was or was not a dangerous defect is for the jury and is not a question of law. The rule, that such minor obstructions as ice and snow upon the sidewalk create no liability against a municipality because of their fleeting character, does not apply when there are defects in the sidewalks themselves. •
    Error from court of common pleas.
    Peter Emslie, for plaintiff:
    It is the duty of a city to exercise an active vigilance to keep the sidewalk in a reasonably safe condition, and such has been the doctrine of the numerous cases which have followed the case of Todd v.. Troy (City), 61 N. Y. 506.
    Where one was injured by falling on a portion of a city sidewalk made of glass and iron and worn smooth and slippery in consequence of its smoothness it was held he could maintain an action against the city. Cromarty v. Boston (City), 127 Mass. 329 [34 Am. Rep. 381].
    It is evident that the defective condition of the walk at this point is due to the negligent manner in which it was constructed and at the same time no doubt to natural cause that this condition is not averred the proximate cause yet it concurs, there being one or more causes it is sufficient if aify one be averred. Huber v. Huber, Wood county circuit court [unreported].
    The doctrine that a city is not liable for injuries caused by natural accumulation of ice or snow has never been the rule in Ohio provided the city had actual or constructive notice of the condition and reasonable time had elapsed after the accumulation and formation of ice thereon. We contend that the time is a question for the jury after it has commenced to run; that the negligence is a question for the jury. Was plaintiff injured by reason of the facts complained of in the petition is a question for the jury. Conneaut (Vil.) v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236] ; Russell v. Toledo, 10 Circ. Dec. 367 (19 R. 418) ; Leipsic (Vil.) v. Gerdeman, 68 Ohio St. 1.
    M. R. Brailey, for defendant.
   HAYNES, J.

In this case a petition in error is filed to reverse the action of the court of common pleas. It is a case in which Adelia Bloom is plaintiff and the city of Toledo defendant. It appears from the evidence in the case (briefly) that there existed at the time of the occurrences complained of, in the sidewalk upon the easterly or northeasterly side of Lagrange street, at or near the junction of that street with Erie street in this city, a depression in the sidewalk, wherein, in times of rain or melting snows, water would accumulate and stand and was liable to, and did, be.come frozen and slippery, and that this state of affairs had existed for a considerable time prior to February 1,1902, at which time, in the evening, the plaintiff was passing along that street with her husband, and stepped upon this icy spot, slipped and fell, receiving severe injuries from which she was laid up for a long time and from which she was for a long time disabled.

Upon the tidal of the case, testimony having been given to establish these facts, the court directed a verdict for defendant, the city of-Toledo, and thereupon a petition in error is prosecuted to this court for the purpose of reversing the action of the court below.

The testimony upon the trial showed that there was this depression. It seemed that one end of the stone had become sunken lower than the rest of the sidewalk, and therefore it retained the water which fell during rains, or the water which came from the melting of snows, or the water which ran into it from the adjacent property.

We suppose the theory of the trial court was, that this obstruction was of such a nature that the city was not liable, and the line of argument is, that in regard to these minor obstructions, arising from snow and ice upon the street (liable to come today and be gone tomorrow) that there can be no liability upon the part of the city. I do not propose to go into a discussion of all the cases that have been cited in regard to the matter, but I simply point out this fact, that in all these cases it would seem that the court confines its decisions to cases where there are no defects in the sidewalks (along ordinary sidewalks there may become, by reason of snow storms or sleet storms, ice, in a very few minutes, and there may be accumulations of water that follow a rain or from snow that has melted within a very short time), and the courts have,held, in cases of that kind, that the city is not liable. But when cases arise from defect in a sidewalk and the sidewalk itself becomes the source of the evil, the rule is different; and we think it should be different. It is true that this unevenness covered a very small space; but it is in the sidewalk (which is not more than four or five feet wide), and it is certain that it was large enough so that a person could receive a very severe injury by stepping upon a spot of that kind, and it certainly should be looked after and remedied just as much as though half of a plank were gone; it is just that class of defects which require the attention of the city, and too often, I fear, just that class of cases which are overlooked by the officers of the city.

After a full discussion- of this case we refer to the case of Russell v. Toledo, 10 Circ. Dec. 367 (19 R. 418), decided in the January term, 1899, by this court, in which Judge King delivered the opinion, and in which he discusses these questions very fully and very clearly. I will simply say that in deciding this case we follow the law as laid down in the decision of thát case and affirm it and abide by it. The question whether this defect was a matter which was dangerous, or not, is a matter which should have been submitted to a jury, and is not a question of law that the court, under the circumstances, should take from the jury.

The verdict will be set aside and the judgment reversed and the cause remanded for a new trial.  