
    Morris v. Woodburn.
    
      Liability of city lot owner — Defective covering to vault under sidewalk — Duty of municipality.
    
    If the owner of a lot abutting upon a street of municipality, for the use of his property, contracts a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair.
    (December 14, 1897.)
    Error to the Circuit Court of Columbiana county.
    Miss Woodburn brought an action in the court of common pleas against Mrs. Morris, and the city of East Liverpool, to recover on account of personal injuries sustained by her being precipitated into a coal vault under a sidewalk in the city, and in front of abutting premises owned by Mrs. Morris, and occupied by her tenant. Against Mrs. Morris it was alleged, that for the use of her property, she had constructed said vault under the walk, and had covered the same with an iron grating which had not been made to fit into the opening, and had not been securely fastened, and that having so defectively constructed the same, she knowingly permitted it to remain in such defective and dangerous condition, from which the plaintiff’s injuries were sustained.
    Against the city it was alleged, that at the place where the accident occurred, the sidewalk was much traveled, and that the city, with knowledge of the dangerous condition of the walk, negligently and carelessly permitted it to remain in that condition.
    Judgment was asked against both defendants. Both defendants demurred to the petition generally, and for misjoinder.
    The demurrers having been sustained, the plaintiff, on leave, filed an amended petition against Mrs. Morris alone, alleging against her, as before, negligence in the construction and maintenance of the vault and grating, and that it was so maintained by her with knowledge that it was a nuisance, and a menace to all who had occasion to use the walk.
    Without demurring, Mrs. Morris answered, admitting her ownership of the abutting property, and the improving of the same by her, arid the construction of the coal vault and the grating covering its opening, but denying all other allegations, of the petition, and alleging that if the plaintiff had received the injuries alleged in her petition, they were caused by her own negligence.
    The plaintiff, replying, denied that the injuries were caused by her negligence.
    A substantial verdict was returned in favor of the plaintiff, a motion for a new trial filed by Mrs. Morris, was overruled, and judgment was rendered on the verdict. This was affirmed in the circuit court.
    
      A. G. Smith and A. H. Clark, for piaintiff in error.
    It will not be seriously controverted that the city has the whole control and supervision of the streets, including sidewalks. This control and supervision is vested in the officers of the municipal corporation.. The law of this state so provides. Section 2640, of the Revised Statutes, also section 2328, Revised Statutes.
    So that the statutes provide that the duty of keeping sidewalks open, in repair and free from nuisance, is devolved upon the city, and this duty the municipal corporation, under the law, owes to the public.
    We think and contend that the trial court erred in overruling the objection of defendant because the city was and is primarily liable under the pleadings and evidence as well.
    This coal hole, they allege, was improperly constructed, and had been in the bad condition described for a long time, about nine months. The evidence shows that several persons traveling along the sidewalk had met with mishaps or accidents, and all say and claim they occurred by reason of the defect of the coal hole and consequently defective sidewalk. It would seem, therefore, that the primary and proximate negligence causing the accident and alleged injuries and consequent damages would rest upon the city. Rochester v. Campbell et al., 123 N. Y., 405 ; 21 N. E. Rep., 371; 149 Mass., 289; Grove v. Kansas City, 75 Mo., 672.
    The city council, the agents of the city, have absolute control over the highways and sidewalks within the corporate limits of the city. The plaintiff below recognized this fact and in beginning- her action complains of the carelessness and negligence of the city, and says such negligent conduct on the part of the city caused, or at least contributed to, the accident and her consequent injuries. And if the defendant city, as it was before it got out of the ease by demurrer, is held liable for damages by reason of the unsafe condition of the sidewalk, it has its remedy over against the plaintiff in error, if by her negligent act the sidewalk was rendered unsafe. Beach on Public Corporations, sections 1490 and 1491; Rochester v. Campbell, 123 N. Y.; 405; Saulsbury v. Ithaca, 94 N. Y., 27; Kurtz v. Boylston Market Association, 14 Gray, 252; Robbins v. Chicago, 4 Wall., 657; Girdley v. Bloomington, 88 Ill., 554; Smalley v. Appleton, 75 Wis., 18; City of Philadelphia v. Smith, Pa., 16 A., 493; Woodard v. City of Boscobel, Wis., 54 N. W., 332; City of Abilene v. Cowperthwait, 52 Kan., 324.
    
      J. G. Moore and J. H. Brookes, for defendant in error.
    Had we sued the city and recovered, the city in turn could have recovered over against the plaintiff in error upon the ground of primary responsibility. Counsel for plaintiff in error concede this to be true. By what manner of reasoning, then, can it be claimed that a process of circumlocution is necessary on our part before we can reach and recover from the one who is directly and primarily responsible for our injury ? City of Defiance v. Wilhelm, 12 Ohio Circuit Court Report, 346; Barry v. Terkildsen, 72 California, 254; Clifford v. Day, 81 N. Y., 56; McIlvaine v. Wood, 2nd Handy, Cincinnati Superior Court Reports, 166.
    We do not take issue at all with section 2640 and section 2328 of the - Revised Statutes relied upon by plaintiff in error, and had this injury resulted from the natural decay and wear of the sidewalk in front of the Morris house, and through no overt act of Mrs. Morris, clearly the city alone would be responsible.
    It is clear that the fault was not due to decay, use, wear or interference by mischievously inclined persons as counsel intimate, but to the original construction of the hole and grid, admitted to have been made by Mrs. Morris.
    It was thus a nuisance from the beginning, and no claim of liability of tenant could be made j n this case. The nuisance had existed several years before the witness Burns rented the property and ought to have been, and doubtless was, known to Mrs. Morris long before Mr. and Mrs. Burns had called her attention to it and she had promised to have it abated. Shindelbeck v. Moon, 32 Ohio St., 264.
   Shauck, J.

It is thought by counsel for the plaintiff in error, that upon the facts which the petition alleges and the evidence offered in its support at the trial tends to prove, the judgment' should have been in her favor. This conclusion is drawn from the legal propositions that the statute, (section 2640, Revised Statutes,) charges upon the municipality the duty of keeping streets and sidewalks open and in repair, and that the duty of constructing and maintaining’ sidewalks, is not, either by the statute or the common law, charged upon the owner of abutting property.

These propositions are well sustained by the provisions of the statute and the decided cases. They would justify the conclusion drawn by counsel if the negligence charged against Mrs. Morris, like that charged against the city in the original petition, consisted of mere omissions of supposed duty. But while the tort of the city consisted in the failure to discharge a duty imposed by statute, that alleged in the amended petition against Mrs. Morris, consisted in the creation of a nuisance, dangerous to those using the walk. These are concurrent and related torts, but they are not joint. In view of their independent character, the plaintiff might, at her election, maintain her action against either the city for its omission óf duty, or against Mrs. Morris for the creation of the nuisance which occasioned her injury. And it appears from reason and authority that the primary liability in such case is upon him who actively creates the nuisance; so that if a recovery were had against the bity, it might in turn recover from the perpetrator of the wrong. Chicago v. Robbins, 2 Black, 418; Same v. Same, 4 Wall., 657; Rochester v. Campbell, 123 N. Y., 405.

The liability of the owner of the abutting property for an injury resulting- from torts of this character, notwithstanding- the omission of duty by the municipality, is necessarily implied in Clark v. Fry, 8 Ohio St., 358; and Railroad Company v. Morey, 47 Ohio St., 207, although the precise question may not have been raised.

Judgment affirmed.  