
    McCarthy, Admr., v. Adams et al.
    (Decided February 23, 1932.)
    
      Mr. Charles B. Baedel and Mr. Price Janson, for plaintiff in error.
    
      Messrs. Fisher, Leahy & Weintraub, for defendants in error.
   Lemert, J.

Plaintiff in error, Charles F. McCarthy, as administrator of the estate of Amanda Mae McCarthy, brings this action against William S. Adams and the city of Canton, Ohio, jointly, alleging in substance that the decedent fell on a defective sidewalk immediately in front of the dwelling owned and controlled by defendant in error William S. Adams, and alleges that on the 10th day of June, 1930, the time complained of, there was in effect a duly enacted ordinance of the city of Canton, Ohio, which ordinance reads as follows: ‘ ‘ Section 12. It shall be the duty of the owners of lots abutting on sidewalks in said city to keep said sidewalks in good repair, in front of their premises, and to prevent any unevenness in the surface grade of such sidewalks by any reason whatsoever. It shall be the duty of the clerk of Council, upon resolution of City Council, to first cause notice to be given to the owner of the premises abutting upon such sidewalk and if such owner shall not within ten (10) days thereafter, make the necessary repairs or improvements in said sidewalks, the same shall be done by the Director of Public Service and the expense thereof shall be assessed upon the premises so abutting and shall be certified by the proper city officials to the County Auditor, and the same shall act as a lien upon the property of such owner, and shall be collected as, provided for in the case of special assessments.”

The plaintiff in the court below, by way of amended petition, averred that on or about the 10th day of June, 1930, and for a long time prior thereto, and for a period of at least six weeks, the sidewalk on Eighth Street, S. W., immediately in front of the house located at 407 Eighth Street, S. W., and at said time owned and controlled by the said William S. Adams, was allowed by the defendants herein to become and had become out of repair, and the surface thereof had become uneven and had bricks raised considerably above the surface of said sidewalk, and said sidewalk had numerous pitfalls and holes in it; that said sidewalk was constructed of bricks laid lengthwise and parallel to said street; that said bricks became loose, and were irregular and projected above the surface grade of said street; and that by reason of the condition of said sidewalk it had become dangerous for pedestrians to use the same.

Plaintiff further alleged that the defendant William S. Adams, not only had permitted said defective condition to exist, but had in part created the same in attempting to repair it, and that the defendants, the city of Canton and said William S. Adams, knew and had notice of, or ought to have known, that for a long time prior to the date of said injury the said sidewalk was in such defective and dangerous condition.

The record discloses that the city of Canton, Ohio, was discharged as a defendant in the cause, leaving the defendant William S. Adams as the sole defendant.

It is to be noted that the amended petition in question charges the defendant with negligence in two particulars: First, that he violated the ordinance in question; and, second, that the defendant William S. Adams, not only had permitted said defective condition to exist, but had in part created the same in attempting to repair it.

The defendant filed a motion to strike from the amended petition the ordinance in question, for the reason that the same was irrelevant and immaterial, which motion was sustained. Thereupon a demurrer was filed to the amended petition, on the grounds that the amended petition did not state a cause of action. This demurrer, in effect, raised two questions: First, that on the face of the petition the plaintiff was guilty of contributory negligence and could not recover; and, second, that there is no allegation of negligence against the defendant.

The court below sustained the demurrer, and this proceeding in error comes into this court upon exceptions of the plaintiff in error to the sustaining of the motion and the demurrer.

On the first question presented, that the court sustained the motion to strike the ordinance from the amended petition, we note that Section 3714 of the General Code provides as follows: “Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance. ’ ’

After the passage of the above statute, we note that Section 3853 of the General Code was passed, which provides: “The council of municipal corporations may provide by ordinance for the construction and repair of necessary sidewalks, curbing, or gutters, or parts thereof, within the limits of the corporation, and may require by imposition of suitable penalties or otherwise, the owners and occupants of abutting lots and lands to keep the sidewalks, curbing and gutters in repair, free from snow or any nuisance.”

Undoubtedly, the council of the city of Canton, Ohio, passed the ordinance set forth in the petition, which appears as hereinbefore quoted, and known as Section 12. The question then presents itself as to whether or not these statutes and the ordinances in question impose any civil or additional liability on the' property owner to individuals using streets, alleys, sidewalks, etc.

In Steinbeck v. John Hauck Brewing Co., 7 Ohio App., 18, we have a case which has been reported and followed through a long line of authorities, and that case, in the syllabus, holds: “An owner who fails to remove ice from a sidewalk extending along his premises, where same was-formed thereon by natural causes and without any act or fault on his part, or fails to make said sidewalk safe by covering the same with sand or some other suitable substance, is not liable in damages to one who sustains injuries by falling upon such icy sidewalk, even though a city ordinance required such owner to remove the ice from such sidewalk or cover the same with sand, and provided a penalty for failure so to do.”

In Sammis v. Wilhelm, 6 C. C., 565, 3 C. D., 587, it was held: “A person injured by a fall caused by stepping through a sidewalk rendered defective by reason of want of proper repair, cannot recover damages for such injury in an action against the owner of the lot abutting upon the sidewalk.”

There was at common law no liability upon an abutting property owner for injuries resulting from defective streets or sidewalks, and if any such duty arises it must be imposed upon him by statute, or from his active participation in the construction or maintenance of the defective sidewalk, amounting to a nuisance. The ordinance in question imposes no additional civil liability upon an abutting property owner to a private individual injured upon the sidewalk — by force of the ordinance alone. Therefore, we are of the opinion that it was right and proper for the court below to strike the ordinance from the petition, and the court by so doing did not err.

Coming now to consider the demurrer to the amended petition, the demurrer is to the effect that the amended petition does not state a cause of action. An examination of the petition necessarily causes the question to arise whether or not the amended petition on its face shows contributory negligence on the part of the plaintiff below; and, second, whether or not there are sufficient allegations of negligence on behalf of the defendant alleged in the amended petition.

The petition alleges that on the 10th day of June, 1930, and for a long time prior thereto, and for a period of at least six weeks, the sidewalk in front of the house owned and controlled by the defendant Adams was allowed by the defendant to become out of repair and the surface thereof allowed to become uneven, and bricks had raised considerably above the surface of said sidewalk, and said sidewalk had numerous pitfalls and holes in it; that said sidewalk was constructed of bricks laid lengthwise and parallel to said street, and said bricks became loose and were irregular and projected above tbe surface grade of said street; and that by reason of said condition of said sidewalk it became dangerous for pedestrians to use the same; and further alleges that the decedent stumbled and fell with great force and violence on this faulty and defective brick sidewalk. Then follow the allegations of injury and damages.

In Schaefler v. City of Sandusky, 33 Ohio St., 246, 31 Am. Rep., 533, it is held: “A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not be regarded as exercising ordinary prudence, and, therefore, can not maintain an action against the city.”

In City of Norwalk v. Tuttle, 73 Ohio St., 242, 76 N. E., 617, we find:

“One who voluntarily goes upon a sidewalk of a city which is obviously, and by him known to be, in a dangerous condition, cannot recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown.” The same ruling has been laid down in Fagins v. Bloch Realty Co., 25 C. C. (N. S.), 122, 26 C. D., 369, and in 21 L. R. A. (N. S.), 614, note. In these cases it is to he noted that the courts have held that it is not required that the plaintiff know the condition of the sidewalk, but that it will prevent a recovery if he receives the injury in broad daylight and knew or should have known the dangerous condition of the sidewalk.

Referring again to the petition of the plaintiff below, we note that the only allegation of negligence on the part of the defendant, other than the failure to comply with the ordinance aforesaid, is as follows: “That the defendant, William S. Adams, not only had permitted said defective condition to exist, but had in part created the same in attempting to repair it.”

We believe this to be a general allegation that the defendant was negligent. There is no allegation in the petition of any specific act of negligence or any claim made of anything that the defendant did in creating a nuisance or dangerous condition, but simply the general allegation that the defendant had in part created the condition in attempting to repair it.

Therefore, entertaining the view aforesaid, and following the law hereinbefore laid down, we are of the opinion that the court below was right in sustaining the demurrer to the amended petition. Accordingly the finding and judgment of the court below will be, and the same is hereby, affirmed.

Judgment affirmed.

Shebick, P. J., and Montgomery, J., concur.  