Sherman v. City of La Crosse ( 1923 )

Owen, J.

The city of La Crosse did not appeal from the judgment, and we are called upon to review only questions affecting the liability of the refining company. Third street in the city of La Crosse runs north and south. The defendant refining company is the owner of abutting property on the east side of said street. A large brick building is erected on its property at right angles with the street. The sidewalk extends up snug to the brick building, although the building seems to be set back 3.8 feet from the ordinary sidewalk line. It has an ordinary gable roof, and the water drains from the roof on the north and south sides of the building. On the south side of the building’ the refining company has constructed and maintains a brick sidewalk, six feet in width, extending back from the regular sidewalk lme a distance-of 31.6 feet. This sidewalk is built snug to the south side of the building, and, as a consequence, water from the south side of the roof of the building drips onto this brick sidewalk in times of rain and melting snow. In the 31.6 feet the brick sidewalk has a drop of something over an inch towards the city sidewalk. It pitches very slightly towards the building, but not to exceed 7-100 of a foot in its width of six feet.

Plaintiff was injured on the 12th day of January, 1922. Prior to this time there had been a heavy fall of snow. A path had been shoveled along the brick walk and the snow thrown up on either side thereof. Water resulting from melting' snow on the roof of the building, as well as that on and along the brick walk, had run down said walk onto the city sidewalk, forming the icy condition of the city sidewalk upon which plaintiff slipped and fell.

It is contended that the refining company’s liability is established by the case of Adlington v. Viroqua, 155 Wis. 472, 144 N. W. 1130. In that case the defective condition of the sidewalk was caused by water discharged near the walk by a conveyor pipe leading from the defendant’s building. The conveyor pipe emptied into a gutter, which took the water under the sidewalk. This gutter, however, had frozen up, causing the water accumulated from the conveyor pipe to flow over instead of under the sidewalk. It will be noted that in the Adlington Case the owner had accumulated the water dripping from his roof in the conveyor pipe for the purpose of preventing it from running onto his own premises and discharging it in the street. There was a deliberate and intentional purpose on the part of the owner to accumulate the water and discharge it in the street. It is not contended in this case that if the water had dripped from the refining company’s roof onto the ground and from there run onto the city sidewalk that the refining company would have been liable. It is claimed that the brick walk was constructed in such a manner as to accumulate the water, and that it was an artificial accumulation and not a natural flow of the water which caused the icy condition of the sidewalk.

The brick walk involved in this case is an improvement very common to city property. Indeed, most city property owners have some kind of a walk leading from their house to the city sidewalk. This walk was built in the ordinary manner. It was built for and devoted to the ordinary and usual purposes of a sidewalk. It is not contended that it was built for the purpose of accumulating water coming from the roof of the building and conveying it onto the city sidewalk. ' „ ,

We have therefore a very usual and ordinary improvement of city property abutting on a street, not built for the purpose of accumulating and discharging water on the city sidewalk, but which, perhaps, has that incidental effect. The question is whether such an improvement, having such an incidental effect, constitutes actionable negligence on the part of the property owner when the water freezes and causes an unsafe condition of the city sidewalk. We do not think the result here should be regarded as an artificial accumulation of surface water. This brick walk, and the purpose for which it was constructed, is in no sense comparable to the conveyor pipe, and the purpose for which it was constructed, in the Adlington Case. That plainly con-, stituted an accumulation of surface water. It was constructed for that express purpose. The situation is quite different from an ordinary improvement, intended for a different purpose, which may have an incidental influence upon the natural flow of surface water. .We hold that the situation here did not constitute an artificial accumulation of surface water, and that no actionable negligence on the part of the refining company is disclosed by the evidence. The judgment against it is erroneous.

Although the city has not appealed from the judgment, we are urged to pass upon questions presented by the record affecting its liability. We find it unnecessary to consider any question except that of the appealing defendant’s liability, and as we reverse the judgment on grounds which do not affect the liability of the city we cannot disturb the judgment against it.

By the Court. — The judgment rendered against the defendant La Crosse Refining Company is reversed, and cause remanded with instructions that the cross-complaint against it be dismissed.