
    The City of Norwalk, Ohio, v. Tuttle.
    
      Petition to recover for injuries — Received on icy sidewalk of municipality — Alleging no structural defect in sidewalk — ' States no cause of action — Law of negligence of municipalities.
    
    1. A petition filed-for the purpose of recovering from a municipality on account of injuries sustained by the plaintiff from falling upon an icy sidewalk, the conditions being solely due to the action of the elements, but not alleging either a structural defect in the walk or any act of the municipality causing the formation of the ice, does not state a cause of action. (Chase v. The City of Cleveland, 44 Ohio St., 505, approved and followed.)
    2. 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. (Schaefier v. The City of Sandusky, 33 Ohio St., 246, and The Village of Conneaut v. Naef, 54 Ohio St., 529, approved and followed.)
    (No. 9387
    Decided January 16, 1906.)
    Error to the Circuit Court of Huron county.
    
      In the court of common pleas there was a recovery against the City of Norwalk as defendant upon what the plaintiff styled the second cause of action, the substance of which was that the city had permitted ice to accumulate and remain for forty-eight hours upon a prominent street of the city and that Tuttle while in the exercise of due care as a footman upon such street slipped upon said ice and fell sustaining injuries of a serious character.
    It was not alleged against the city either that there was a structural defect in the walk or that it had by any act contributed to the formation of the ice upon which Tuttle sustained his injury. A demurrer to this cause of action was overruled.
    In the answer of the city the allegations of negligence were denied and Tuttle’s own negligence was alleged to have been the cause of his injury. These affirmative averments were denied by a reply. On the trial there was no evidence to show any structural defect in the walk or any act of the city causing the formation of the ice. The evidence of Tuttle himself showed that the ice upon which he fell was plainly visible and that he actually saw it before going upon it. There was a verdict for the plaintiff, a motion for a new trial was overruled and judgment against the city followed the verdict. This judgment was affirmed by the circuit court.
    
      Mr. Edgar G. Martin, city solicitor, and Mr. G. Bay Craig, for plaintiff in error,
    cited and commented upon the following authorities:
    
      The Village of Conneaut v. Naef, 54 Ohio St., 529; Chase v. Cleveland, 44 Ohio. St., 505; Schaefler v. The City of Sandusky, 33 Ohio St., 246; Village of Leipsic v. Gerdeman, 68 Ohio St., 1.
    
      
      Mr. 8. M. Young, for defendant in error, filed no brief.
   Shattck, J.

Since the cause of action upon which the recovery was had in the court of common pleas did not allege either that there was a structural defect in the walk or that the city in any way caused or contributed to the accumulation of the ice upon which Tuttle received his injury, the demurrer raises substantially the same question which was determined in Chase v. The City of Cleveland, 44 Ohio St., 505, where a recovery was denied. It is quite apparent that upon the general subject of the right to recover against municipalities for injuries received upon icy streets the decisions of the courts of last resort are not all reconcilable. But the substantial considerations involved in the discussion seem to justify the conclusion reached in the case cited. All attempts to distinguish the cases because of the form of municipal government have failed, for at last the burden rests not upon an intangible municipal government but upon the taxpayers of the municipality. The ultimate question is to what extent should the power of taxation be exercised for the purpose of indemnifying persons who are thus injured. No one asserts that it may be exercised to the full extent that would be required to constitute the municipality an insurer against accidents. Upon the other hand, it is admitted that it should be exercised to the extent which may be necessary to enforce the liability of a city for default in duty with respect to the construction and maintenance of streets and walks. Accordingly all substantial structural defects which occasion injury to one who is exercising due care are recognized as constituting a ground of liability. But tbe city is not required to construct sidewalks. If it exercises tbe power by wbicb it is authorized to construct them it must in its exercise act with due care with regard to the safety of travelers. Not being required to construct walks it cannot reasonably be held liable on account of perils which are not due to their construction.

Recurrence to a very elementary proposition seems necessary. The proposition is that in cases of this character there is no liability where there has been no default in duty. No default of the municipality appears in cases of this character when the peril is not due to defective construction or to any other act of the city contributing to or causing the dangerous condition of the street, but where that condition is due solely to the action of the elements. In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. Ordinarily they disappear before correction would be practicable by any provision which the city might reasonably be expected to make. It is within common observation that without the presence of snow or rain, from the mere alternations of heat and cold operating upon the frozen earth beneath the walk, there result dangerous conditions of pavements which it would not be possible to prevent or correct. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable for a city to perform. These views were perhaps sufficiently expanded in the case cited. They derive support from the considerations presented in The Village of Leipsic v. Gerdeman, 68 Ohio St., 1. The demurrer to the petition should have been sustained.

The evidence offered by the plaintiff on the trial of the case made it entirely clear that the omission from the petition of allegations of structural defect in the walk or of any act of the city contributing to the accumulation of ice was not through inadvertence. It also showed without contradiction that the condition of the walk when the plaintiff went upon it was not only plainly visible, but further that he was fully aware of it. That these admitted facts would prevent a recovery even if negligence of the city had been shown is made sufficiently clear in Schaefler v. The City of Sandusky, 33 Ohio St., 246 and The Village of Conneaut v. Naef, 54 Ohio St., 529. The motion to direct a verdict in favor of the city should have been granted. The judgments of the circuit and common pleas courts will be reversed and there will be judgment in favor of the plaintiff in error:

Judgment reversed.

Davis, C. J., Price, Crew. Summers and Spear, JJ., concur.  