Moore v. . Gadsden

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] No exception was taken to the charge of the trial judge, nor is any error alleged in the admission or exclusion of evidence. The only question presented is that raised by defendant's motion to dismiss the complaint. It should we think have been granted. Whether the plaintiff was herself in fault was a question for the jury; but we find no evidence upon which it can be said that the defendant, by any unlawful act or negligence, caused that condition of things which, either by or without fault on her part, led to her injury. Neither the grade of the lot, nor the arrangement of the roof, seems to have been made by him, and for aught that appears the conductor-pipe was arranged and constructed by some former owner of the premises in a usual and proper manner. Nor was there any material change in the grade of the lot. Kirby, whose testimony is alone relied upon, fails to show it. The city, he says, cut down the street "two feet or two feet and one-half at that location, from the natural surface of the farm land as it lay in lots," and in building and sodding the yard, the natural surface was changed; but the house is one of a block at the corner of two avenues, with a yard, as it is called, about "six feet wide from the front of the house to the front fence;" a portion is covered by the stoop, and it cannot be gathered from the evidence that the grading was either done improperly or in such a manner as to materially affect the gathering or flow of water, or create a nuisance. He says, "when the house was constructed, the lot outside the street was also cut down two or two and a half feet" — it slopes toward the sidewalk. So do the steps and stoop; and between these and the sidewalk there is no yard. It is true that naturally the grade was to the south, while now it is to the east. But it evidently was so changed as to conform to the improved street and sidewalk. The defendant, however, made no changes in any respect. The condition of the premises was the same before as after he purchased, and had been so since the house was built. If there was a nuisance, it was apparently caused by the omission of the city to have the accumulated ice and snow removed, and for that the defendant was not responsible. (Wenzlick v. McCotter,87 N.Y. 122; 41 Am. Rep. 358; City of Hartford v. Talcott,48 Conn. 525; 40 Am. Rep. 189.) The ordinance of the city is a police regulation, but is not of itself sufficient to give a cause of action to a party injured by an act in violation of its terms. (Knupfle v. Knickerbocker Ice Co., 84 N.Y. 488.)

We think the court erred in submitting the case to the jury as one in which the evidence would in any aspect warrant a verdict for the plaintiff.

The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.