City of Hartford v. Talcott , 48 Conn. 525 ( 1881 )

Pardee, J.

The state places upon municipal corporations the burden of keeping the highways within their respective limits in a reasonably safe condition for public travel; and in cities and boroughs this duty is co-extensive with the width of the street, including that portion used by foot passengers exclusively. As both the carriage and foot-ways are for the convenience of the public and not for the especial use or benefit of adjoining proprietors under the general law, the money expended in maintaining, and in making compensation for injuries resulting from neglect to maintain them, is to be paid by the public-from taxes assessed equally upon all property. The ownership of land upon a way does not carry with it the burden of an unequal contribution to either branch of these expenditures. The individual owes no duty to the public in reference to the way except to remove therefrom all property of his own which obstructs it, and to refrain from doing or placing anything thereon dangerous to the traveler. So'far as defects in it result wholly from the operations of. nature, the proprietor at whose front they exist is without responsibility for them. Therefore, where ice has accumulated upon the sidewalk to a dangerous extent it is the duty of the municipality to remove or cover it within a reasonable time after its formation.

The charter authorizes the council to make' an ordinance regulating the keeping “ open and safe for public use and travel, and free from encroachment and obstruction, the streets, highways, passways and public grounds and places in said city.” But there is in this language no grant of power to the council to change the general law and transfer the responsibility for injuries resulting from defects in the way from the public to an individual who is not responsible for their existence. The utmost reach of it is only to authorize the enactment of an ordinance requiring each proprietor upon the way to assist the city in restoring the walk to a condition of safety, with a fixed and reasonable penalty for disobedience.

The council enacted the following ordinance:—

“ Sec. 11. The owner or owners, occupant or occupants, private corporation, or any person having the care of any building or lot of land bordering on any street, square or public place within the city, where there is a sidewalk graded, or graded and paved, shall cause to be removed therefrom any and all snow, sleet and ice, within two hours after the same shall have fallen, been deposited or found, or within three hours after sunrise, when the same shall have fallen in the night season.

“ Sec. 12. Whenever the sidewalk or any part thereof adjoining or fronting any building or lot of land, or any street, square or public place, shall be covered with ice, it shall be the duty of the owner or owners, occupant or occupants, private corporation, or any person having the care of such building or lot, to cause such sidewalk to be made safe and convenient by removing the ice therefrom, or by covering the same with sand or some other suitable substance; and in case such owner or owners or other persons shall neglect so to do for the space of one hour during the daytime, the person or persons whose legal duty it shall be to so clear said walk and so neglecting, shall be liable to the penalty named in the succeeding section.

“ Sec. 13. The owner or owners, occupant or occupants, private corporation, or any person having the care of any building or lot of land, and whose duty it is to clear the same, who shall violate any of the provisions of the eleventh or twelfth sections of this ordinance, or refuse or neglect to comply with the same, shall pay a penalty of two dollars for every twelve hours such person, owner or owners, occupant or occupants, shall neglect to comply with said provisions, or any of them, after notice from any policeman of said city.

“ Sec. 17. If any sidewalk shall remain encumbered with snow, ice or sleet, for twenty-four hours after the same has fallen or been deposited, the chief of police shall notify the owner or person having the charge or care of the lot or building bordering on such sidewalk and legally liable to clear the same; and if such sidewalk is not thoroughly cleared within twenty-four hours after such notice shall have been given, or properly covered with- sand or some other suitable substance, the chief of police shall cause the same to be cleared, and collect the expense thereof of such owner or other persons : and the city attorney shall, at the request of the chief of police, collect by suit such expense as a debt due the city.”

But, by passing this ordinance the city has not relieved itself from responsibility for the safety of travelers; it remains answerable for injuries resulting either from the negligence of the individual or its own omission to act. The labor performed by those who obey and the fines and expenses paid by those who do not, measure the extent of the advantages to. be derived from the exercise of the power to pass it.

Moreover, there not being upon the individual any liability at common law for injuries resulting from obstructions in the way wholly the effects of natural causes, such liability is not brought into existence by force of declarations in the ordinance that the obstructions are nuisances, or that it is his duty to remove them; for, as the liability is the creation of the ordinance, it can be no greater than that specifically named therein; and as, in the. one before us, the council measured it by a fine with cost of removal, the city has thereby barred itself from enforcing an unnamed and unlimited liability beyond. In the matter of statutory penalties the expression of a certainty prevents the existence of an uncertainty. ’

In support of his position counsel for the plaintiff has cited—Robbins v. City of Chicago, 4 Wall., 657, Portland v. Richardson, 54 Maine, 46, Lowell v. Boston & Lowell R.R. Co., 23 Pick., 24, and Brooklyn v. Brooklyn City R.R. Co., 47 N. York, 475,—but these are instances of excavations made and negligently left open in the way by the defendants; Boston v. Worthington, 10 Gray, 496, and Churchill v. Holt, 127 Mass., 165,—instances of cellar-ways opening into the street and negligently left unprotected—practically, daily digging and leaving open a dangerous excavation in the street; Milford v. Holbrook, 9 Allen, 17,—negligently permitting an awning to fall; Gray v. Boston Gas Light Co., 114 Mass., 149,—negligently permitting a chimney to fall, Norwich v. Breed, 30 Conn., 535,—digging and negligently leaving unprotected an excavation on the defendant’s land, but so dangerously near and open to the street as to be in effect an excavation therein. In each case the defendant placed a dangerous obstruction in the way, and of course for a time after doing the act was upon every principle responsible for the consequences, and that irrespective of any city ordinance. .

The Court of Common Pleas is advised to render judgment for the defendants.

In this opinion the other judges concurred.