
    NEGLIGENCE — ICY SIDEWALKS.
    [Cuyahoga (8th) Court of Appeals,
    February 7, 1916.]
    Meals, Grant and Carpenter, JJ.
    Agnes Fagins v. Bloch Realty Co.
    Permitting Sidewalk to Become Icy in Violation of Ordinance, Does not Impute Wantonness or Wilfulness, Cutting off Defense of Contributory Negligence.
    An inference of wantonness or wilfulness, cutting off the defense of contributory negligence, cannot be imputed from a property owner’s permitting the sidewalk in front of his premises to become covered with ice in violation of municipal ordinances, from which a pedestrian, injured while voluntarily and knowingly attempting to pass over such icy sidewalk, is excused from the exercise of ordinary care to avoid the injury; the failure to obey the ordinance and permitting the ice to accumulate in the first place were coincident but not different things, and do not introduce the rule of wilfulness.
    Error.
    
      A. H. Martin, for plaintiff in error.
    
      Ford, Snyder & Tilden, for defendant in error.
   GRANT, J.

In this proceeding we are asked to reverse the judgment of the court of common pleas, following a verdict directed by that court, upon the conclusion of the plaintiff’s testimony.

As being substantially correct, we adopt, as our own the statement of the plaintiff’s brief as to the issue» joined by the pleadings in the case, as follows:

“Agnes Fagins, as plaintiff in the common pleas court, brought her action against the Bloch Realty Company, as defendant, and 'charged in her petition that the said defendant, being the owner and in possession of a certain tall brick building abutting on .Walnut Avenue, Cleveland, 0., on January 26, 1915, had constructed and maintained a certain down spout on said building which was inadequate to and which failed to properly conduct the water from the roof of said building to the sewer, but permitted the water accumulating on said roof to overflow and flow down the outside of said 'down spout and to be discharged on the surface of the sidewalk on Walnut avenue and to flow across the sidewalk eastwardly therefrom to the gutter, and so flowing to freeze and form an accumulation of ice in ridges on said sidewalk, — causing the same to be dangerously obstructed, all in negligent, wanton disregard of the laws and ordinances of said city. That on said date she, the plaintiff, while lawfully proceeding 'along said sidewalk as a pedestrian, in the exercise of due care, slipped and fell on said sidewalk, because of said icy obstruction and defect and suffered serious permanent injury to her right knee rendering her a permanent cripple. And charged that the defendant thereby had wantonly, negligently and in violation of the laws and ordinances of the city, inflicted said injuries upon her to her damage, and prayed judgment accordingly:.”

The defendant in its brief says that the plaintiff’s statement of the facts which the testimony offered at the trial tended to prove, is also correct in substance; wherefore we adopt that also as ours, as follows:

“On January 26, 1915, at about 11:30 A. M., Agnes Fag-ins, plaintiff in error, a woman in her 57th year of age, was walking westward ,on the sidewalk on the North side of Walnut avenue, Cleveland, Ohio, ‘as carefully as she could’ in the business, of collecting washings, — she being a washerwoman — on her way to the Hanna Flats. Water accumulating on the roof of the Hanna Flats had backed up, — the down spout being clogged and overflowed and instead of being conducted down the inner side of the down spout to the sewer, ran down the outside of the easterly down spout and was discharged upon the surface of the sidewalk and ran across the sidewalk to the street. In so doing it froze on the down spout and upon the sidewalk from time to time and caused an accumulation of ice, forming in ridges and unevenly across the sidewalk, being almost a foot thick or high at the side of the building at the end of the down spout and ranging from that thickness to three or four inches thick at the curb and extending entirely across the sidewalk from the building to the curb, and extending of the same width, eastwardly toward E. Twelfth street, from the down spout about eight or twelve'feet. The sidewalk from the building and down spout to the curb is about ten feet. wide. A pedestrian, in order to avoid the ice, passing along said sidewalk going to said Hanna Flats would have to leave the sidewalk at a certain drive about twelve feet east of the down spout on the southeasterly end of said flats and pass into the street outside of the curb and travel about eighteen feet before returning to the sidewalk to enter the building. This accumulation of ice which made the sidewalk unsafe and dangerous was permitted to remain for about five days after the attention of the defendant’s manager was called to it and before plaintiff was injured by falling thereon.

The attention of the defendant’s manager was called to this accumulation of ice which made the sidewalk unsafe and dangerous about five days immediately prior to the day of the plaintiff’s injury, but nothing was done to remedy said condition.

"When within a very short distance, — ‘four or five steps’— or about ‘three feet’ of the Hanna Flats, the plaintiff slipped and fell on the accumulation of ice. She had gathered washings from the “Hanna” for several years. She had passed over this sidewalk on the day before (Monday) several times. At the time of her injury observing the icy, uneven, rough, slippery condition of the sidewalk, she walked as best she could, — being compelled to go after her work and being unable to stop. On Tuesday, the day of her fall, it was a little warmer than it had been, causing some thawing and a larger flow of water than on the preceding days. There was no other equally direct and convenient way to her destination open, to plaintiff. She sustained, as a result of the fall, a very painful injury to her right knee and foot, rendering her prostrate, helpless and unable to walk. Also a painful, persistent swelling and inflamation and a fluid effusion in the bursa about the knee joint. A severe sprain and a tearing of the ligiments about the knee joint, a displacement of the two cartileges of the knee and a latent, quiescent, congenital, syphilitic taint in the blood was revived and rendered active and a necrosis of the head of the tibia ensued, — rendering said plaintiff a helpless cripple, permanently-incapacitated from using her right leg and from following her usual vocation.

The defendant, The Bloch Realty Company, owned and was in possession and control of the building, the Hanna Flats, and maintained the down spóut from which the water came, which frozen caused the said icy condition on the sidewalk on which plaintiff fell.

Section 670 and 241 of the Building Code of Cleveland, making it a misdemeanor, punishable by a fine and imprisonment to, in any ease, permit the discharge of water from the roof of a building upon and across the sidewalk.”

The judgment complained of was entered after a motion by the plaintiff for a new trial had been made and overruled.

A single question, therefore, arises upon this record for our determination — having a proper regard for all that the testimony relevantly tends to prove, when brought to bear upon tbe issue joined, and allowing all proper inferences to be deduced from it, still was there anything fit to go to the jury in support of a verdict for the plaintiff f Whatever the trial may have remarked as to the controlling state of the law in Ohio upon which he took the case from the jury, the justification for doing so is to be found, if at all, in the admitted facts that the plaintiff came to her injuries from going into a place of danger plainly visible to her at the moment and which she might without difficulty have avoided. And this is no more than saying that her hurts were brought upon herself as the result of her own negligence, causing or materially contributing to them.

And, if such is the rule, we thing she fairly brought herself within its application, concretely, to her case. She testified that the icy condition of the sidewalk was plainly to be seen when she went upon it and was injured, and that it was so to her knowledge the day before, when also she had occasion to pass that way several times.

Such being the admitted fact, the case seems to be governed by Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533], ef which the syllabus is as follows:

“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, cannot be regarded as exercising ordinary prudence, and, therefore, cannot maintain an action against the city to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable. ’ ’

There is nothing more in the facts of the case at bar that should have sent it to the jury than there was in the one just cited. In that case the controlling facts were disclosed by the answers of the jury to certain special interrogatories sent to them, as follows:

“Q. Did plaintiff see and know the nature and character of this obstruction before and at the time of passing over it? And did he, knowing this, voluntarily pass over it?
“A. He did.
“Q. Could he have easily avoided it, either on the same work, in the street, or on the opposite side, or on any other sidewalk, and reach his destination?
“A. He could have avoided it.”

On these findings the court in that case rendered judgment for the defendant, although the general verdict was for the, plaintiff. And the Supreme Court upheld the judgment.

Here, the same facts were established by the admissions of the plaintiff, a result certainly no.t less satisfactory than the findings of a jury.

The rule stated has been followed by the Supreme Court in Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], and in Norwalk v. Tuttle, 73 Ohio St., 242 [76 N. E. Rep. 617], as well as in numerous affirmed circuit court cases. It must, therefore, be regarded as the settled law of the state in this respect, conclusive in the ease before us, and properly applied by the trial court.

In the case at bar the negligence of the plaintiff, contributing to her injury, was so far the efficient cause of that injury that but for it she would not have been injured, and by the exercise of ordinary care for her own safety she could have avoided the injurious consequences of the initial negligence of the defendant company. See .remarks of Williams, J., in Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89], at p. 222, quoting with approval Thompson, Negligence to the effect we have just stated.

It is, however, claimed by the plaintiff that the doctrine has no application where the circumstances are such that a jury might find from them that the conduct of the defendant in permitting the sidewalk to become covered with ice contrary to law should raise an inference of wantonness or wilfulness and bring that as a dominating issue of fact into the controversy. The contention at 'this point is that the unlawful negligence of the defendant amounted to a reckless disregard of the plaintiff ’s right to a safe passage over the sidewalk, which made wilfulness the controlling ingredient of legal wrong and took the ordinary doctrine of contributory negligence as a decisive factor out of the case. Such is the argument, which is fortified by extensive citations o'f authorities.

This doctrine is shortly but completely stated in 7 Am. & Eng. Enc. Law 443 (2 ed.) thus:

“The doctrine of contributory negligence has no application in cases where the injury is inflicted by the wilful act or omission of the defendant; in such cases contributory negligence is not a defense and, in its legal sense, cannot exist.
“Wilfulness and negligence are the opposites of each other, the one signifying the presence of intention or purpose, the other its absence.”

And in 1 Sherman & Redfield, Negligence, 64, it is said: “It is universally conceded that the greatest contributory fault, including a wilful trespass, is no defense in an action for wilful injury.” And it is contended that when the efficient cause of the injury — in this case an iceeovered sidewalk — is brought about by the disobedience of an ordinance on the part of the defendant, wilfulness is thence to be imputed to it as matter of law, conclusively to the effect of cutting off the defense it might otherwise have of contributory negligence on the plaintiff’s part. At least, it is said, it was a question for the jury. An examination of the authorities brought forward to support this contention, leads us to the conclusion that the doctrine, applied to the case in hand, is unsound. The rule seems to be limited to cases where the initial fault of placing himself in a place of peril was that of the plaintiff, and where the resulting injury arose from the defendant’s reckless and wanton act or omission— amounting in law to wilfulness — then first coming into the situation and bringing about the hurts complained of. Here, the failure to obey the ordinance did not come into the case as the direct cause of the injury as an intervening agency primarily responsible for it; it was there in the first instance, as a usual and ordinary manifestation of negligence, and the fact that it at the same time was a violation of an ordinance was a coincidence and not an independent basis of recovery. Because the omission to obey the ordinance and the permitting of ice to accumulate in the first place were coincident but not different things, does not, as we think, introduce the rule of wilfulness in the case. The line of distinction seems nebulous at first glance but it exists and is perceivable from an analysis of the cases cited in the briefs.

Upon the plaintiff’s testimony we think there was nothing to go to the jury and that the verdict was properly directed.

No error having intervened, the judgment complained of is affirmed.

Meals and Carpenter, JJ., concur.  