Atkinson v. Sheriff Motor Co. , 203 Iowa 195 ( 1927 )

Appellee, a corporation, occupied as tenant, at the time the injuries complained of were received, a building at the northeast corner of Tenth and Locust Streets in the city of Des Moines, where it maintained an automobile sales office and service station. There was a side entrance toward the rear of the building from Tenth Street. This entrance was used for the passage of automobiles to and from the street, over the abutting sidewalk. Long-continued use of the driveway by automobiles, trucks, and other vehicles had caused a depression, variously estimated by the witnesses as from six to twelve inches in width, two feet in length, and one and one-half inches in depth, to be worn in the sidewalk, where the wheels passed over it. The depression was gradual from the surface of the sidewalk toward the center, and in no sense abrupt, so that the foot might be caught, and cause pedestrians to fall upon the sidewalk. On September 10, 1923, appellant, having occasion to pass by the garage on the sidewalk, stepped with one foot into the depression described, and fell violently to the sidewalk, receiving painful and serious injuries. She testified that, as she approached the entrance to the garage, she observed an automobile on the inside of the building, which she thought was about to be driven across the sidewalk; that her attention was diverted thereby, and she did not observe the depression in the sidewalk.

It is a general rule, almost universally recognized, that an owner or tenant in the occupancy of a building abutting upon a public sidewalk or street who, by some affirmative act, or perhaps by some act of negligence, creates a nuisance, is liable to persons injured in consequence of such nuisance. City ofOttumwa v. Parks, 43 Iowa 119; Calder v. Smalley, 66 Iowa 219;Edwards v. Hasel, 157 Iowa 416; 2 Elliott on Roads and Streets (3d Ed.), Section 899, and cases cited. Instances in which this rule has been applied are numerous, and include excavations and obstructions in streets and highways, coal holes, basement areas, and excavations near highways, falling buildings, negligence in building, and many other instances of like character. 2 Elliott on Roads and Streets (3d Ed.), Section 901 to Section 913, and cases cited in the margin; Murphy v. Herold Co., 137 Wis. 609 (119 N.W. 294); Lindstrom v. Pennsylvania Co., 212 Pa. 391 (61 A. 940); Gridley v. City of Bloomington, 68 Ill. 47; and other cases cited in appellant's brief.

It is either conceded or clearly shown by the evidence that the depression in the sidewalk of which appellant complains was several years in forming, and that it resulted from the passage of automobiles and trucks from and to the street over the same. It did not result from the affirmative act of the servants or agents of appellee, nor was it the result of negligence on its part. The lease under which appellee occupied the premises did not require it to repair the sidewalk or to keep it free from defects and in good condition. There are, it seems to us, three insuperable obstacles to a recovery by plaintiff in this case, viz.:

Neither the owner of a building abutting upon a public street or highway or his tenant was charged at common law with the duty to repair such sidewalk or street or to remove defects therefrom. It follows necessarily that, in the absence of a statute or a city ordinance imposing the duty upon the landlord or his tenant to repair the sidewalk and maintain the same in a safe condition, no liability exists on account of injuries occasioned to travelers as the result thereof. 4 Dillon on Municipal Corporations (5th Ed.), Section 1704; 2 Elliott on Roads and Streets (3d Ed.), Section 898; Edwards v. Hasel, supra; Calder v.Smalley, supra; City of Ottumwa v. Parks, supra; Delaware, L. W.R. Co. v. Madden, 241 Fed. 808; City of Des Moines v. BarberAsphalt Co., 208 Fed. 828; Leek v. Kreps, 70 N.J. Law 120 (56 A. 167); Fife v. City of Oshkosh, 89 Wis. 540 (62 N.W. 541); Sneeson v. Kupfer, 21 R.I. 560 (45 A. 579); Beck v. Ferd Heim Brewing Co., 167 Mo. 195 (66 S.W. 928); Lynch v. Hubbard, 101 Mich. 43 (59 N.W. 443); Martinovichv. Wooley, 128 Cal. 141 (60 P. 760); 2 Shearman Redfield on Negligence, Section 343; Breen v. Johnson Bros. Drug Co., 297 Mo. 176 (248 S.W. 970).

It is a general rule that, where a city is bound to repair the sidewalk, the owner of a building abutting thereon is not liable for injuries caused by defects arising from a failure to repair the same. The same rule, in the absence of contract, applies to a tenant occupying the premises. City of Keokuk v. IndependentDist. of Keokuk, 53 Iowa 352; 2 Elliott on Roads and Streets (3d Ed.), Section 898; City of Rochester v. Campbell, 123 N.Y. 405 (25 N.E. 937); Wilhelm v. City of Defiance, 58 Ohio St. 56 (50 N.E. 18); City of Hartford v. Talcott, 48 Conn. 525 (40 Am. Rep. 189); Gridley v. City of Bloomington, 88 Ill. 554.

The defect in question, being only about one and one-half inches deep, with gradually sloping sides, and without any elevations likely to trip persons going thereon, did not constitute a nuisance. Norman v. City of Sioux City, 197 Iowa 1310; Johnson v. City of Ames, 181 Iowa 65; Hirst v. City ofMissouri Valley, 193 Iowa 1225; Frisk v. City of Des Moines,196 Iowa 606.

The foregoing rules, well established and generally recognized by the courts of this country, conclusively negative any right of appellant's to recover damages in this case. Appellee did nothing affirmatively to cause the depression in the walk, which was attributable solely to the use made thereof, which was lawful. Further discussion is unnecessary. The judgment is — Affirmed.

EVANS, C.J., and FAVILLE and VERMILION, JJ., concur.