Bennett v. McGoldrick-sanderson Co.

The case at bar is indistinguishable in principle from Jamesv. Burchett, ante p. 119, 129 P.2d 790. In the case cited, we held that damages were recoverable for injuries caused to one by reason of the negligence of a defendant in permitting stones to be deposited and remain upon a sidewalk in front of defendant's place of business, "upon which plaintiff stepped causing her to fall to the sidewalk." In the case at bar, appellant failed to properly maintain a driveway used by and under control of appellant. The accumulation of ice upon the driveway, under the evidence, which caused respondent to fall was not solely a natural accumulation due to the elements, but the danger incident thereto was increased by acts for which the appellant alone was responsible.

If the water had fallen from that portion of the building leased by appellant and had caused the sidewalk in front of that portion of the building to become slippery, it would have constituted a nuisance and the appellant would be liable for injuries caused thereby, even though the ice had not become rough and lumpy. Drake v. Taylor, 203 Mass. 528, 89 N.E. 1035;Cochran v. Barton, 233 Mass. 147, 123 N.E. 505. See, also,Ainey v. Rialto Amusement Co., 135 Wash. 56, 236 P. 801, 41 A.L.R. 263, and Nadeau v. Roeder, 139 Wash. 648, 247 P. 951.

In the case at bar, vehicles which entered appellant's place of business over the driveway dropped lumps of snow and ice on the driveway and caused ridges to be formed. A lowering of the temperature at night resulted in freezing of the snow and ice on the driveway thereby making the driveway rough, lumpy, and dangerous to pedestrians proceeding along the sidewalk, and discommoded the lawful use of the sidewalk by pedestrians. At the common law any act or obstruction which unnecessarily impedes the lawful use of a highway by the public is a nuisance. Angell on Highways (3rd ed.), p. 274, § 223.

The use by appellant of the sidewalk was subordinate to the use of that sidewalk by pedestrians.

"`The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use, unless a contrary intent is clearly expressed.' (Hudson RiverTel. Co. v. Watervliet T. Ry. Co., 135 N.Y. 393.) A fortiori the use of the highway without legislative sanction must be subordinate to the public right of safe passage. . . ." Tremblayv. Harmony Mills, 171 N.Y. 598, 64 N.E. 501.

In Den Braven v. Public Service Electric Gas Co.,115 N.J.L. 543, 181 A. 46, upon which the majority relies, it was held that, after a snow had fallen, the vehicles passing over the driveway caused the snow to become icy and slippery. On the facts, that case is distinguishable from the case at bar. In the instant case, the driveway became rough and lumpy, which rendered the driveway more dangerous than if it had been only icy and slippery.

Whether the driveway was in such condition that it constituted a nuisance at the time of the accident was a question of fact for the jury and not a question of law for the court. The judgment should be affirmed.

BLAKE and DRIVER, JJ., concur with MILLARD, J.