City of Providence v. Clapp

THIS case was brought up by writ of error, from the circuit court of the United States for the district of Rhode Island.

It was a suit brought by Clapp against the city of Providence, to recover damages for an injury occasioned by an obstruction on the side-walk in one of its principal streets. The obstruction consisted of a ridge of hard-trodden snow and ice, on the centre of the side-walk, along which the plaintiff was passing in the night time, and by means of which he fell across the ridge, breaking his thigh-bone in an oblique direction. The jury found a verdict for the plaintiff, and assessed his damages at $3,379.50.

The circumstances of the case, and the rulings of the court which gave rise to the bills of exceptions upon which the case came up, are stated in the opinion of the court.

It was argued by Mr. Ames, for the plaintiff in error, and by Mr. Jencks, for the defendant.

The points made by Mr. Ames were the following:--

1. That the duty of the towns and cities of Rhode Island, in dealing with falls of snow in their highways and streets, is created and imposed solely by the statutes of Rhode Island, and must be measured by the standard appointed by those statutes.

2. That the liability of said towns and cities, in civil actions, to individuals, for injuries sustained by them in their persons or property, through neglect of duty on the part of said towns or cities, in mending their highways and streets, and in removing therefrom permanent obstacles to passage, as well as temporary ones caused by the falls of snow, is created and imposed solely by said statutes, and cannot be extended beyond the statute measure thereof. Russell v. Inhabitants of Devon, 2 T. R. 667; Mower v. Inhabitants of Leicester, 9 Mass. R. 247; Loker v. Inhabitants of Brookline, 13 Pick. R. 346; Tisdale v. Inhabitants of Boston, 8 Met. R. 388; Holman v. Inhabitants of Townsend, 13 Ib. 297, 300; Brailey v. Southborough, 6 Cush. R. 141, 142; Hull v. Richmond, 2 Woodb. and Minot's R. 341, 342; Reed v. Inhabitants of Belfast, 20 Maine R. 246; Chidsey v. Canton, 17 Conn. R. 478-480; Morey v. Town of Newfane, 8 Barb. Sup. Ct. R. 646, 648, 650-653; Lumley v. Gye, 20 Eng. Law and Eq. R. 189; Sawyer v. Inhabitants of Northfield, 7 Cush. 494-496; Smith v. Inhabitants of Dedham, 8 Ib. 524; Farnum v. Concord, 2 New Hamp. R. 392.

3. That, by the statute of Rhode Island, entitled 'An act for the mending of highways and bridges,' the towns and cities of Rhode Island are bound only to keep their highways and streets open, in case of falls of snow, so as to be passable for travellers, and not to keep them from being slippery from ice or troden-down snow; and that the requisition, in this statute, that the highways and streets be kept safe and convenient for travellers, at all seasons of the year, refers, so far as the incumbrance of snow is concerned, if it refer at all to such incumbrance, to safe and convenient passage through and over the same, in opposition to allowing the highways to remain, in case of falls of snow, blocked up and impeded thereby, so as to be unsafe and inconvenient of passage, and not to safety and convenience, in the sense of being kept free from ice or trodden-down snow, so that foot travellers or cattle may not slip or fall thereon.

That this appears, from the language used in the 1st section of said act, applied to its subject in the climate of New England, as well as by collating therewith the 14th and 15th sections of the same statute, and the 6th section of the act entitled 'An act for mending highways,' passed in 1798, and that the above construction of said statute is the accustomed, sensible-and, indeed, looking to the statute as a practical guide to duty-the necessary construction to be put thereon. Digest of Laws of R. I. of 1798, pp. 386, 387; Ib. of 1844, pp. 323, 326.

4. That the acts of the State of Rhode Island, relating to the side-walks of the city of Providence, do not change, in any way, nor extend the duty or liability of said city, in relation to the incumbrance thereon of snow, but were procured to be passed by said city, merely to enable it to provide for the building and maintaining of side-walks in said city, in a mode and at a charge and through an instrumentality different from those applied by law to other portions of the streets.

5. That, still less do the ordinances of said city, requiring the owners and occupants of lots and buildings therein to remove all the snow from the side-walks in front of the same, within a specified time, under penalty for neglect in this respect, create or extend or change the character of the duty of the city, in regard to the incumbrance of snow, nor create nor extend nor change the character of the liability of said city, for injuries occasioned by the said incumbrance. Levy v. Mayor, &c., of New York, 1 Sandf. Sup. Ct. N. Y. R. 465.

6. That said side-walk acts and ordinances afford no test or standard of the degree or kind of care, or mode of dealing with falls of snow, required of the city of Providence by the statute of Rhode Island, entitled 'An act for the mending of highways and bridges,' which, notwithstanding said acts and ordinances, and the different condition of Providence, applies the same standard, in this respect, to the other towns of the State, as to said city; but are municipal regulations merely, extending the powers of the city of Providence, and by-laws passed by the legislative body of said city, imposing duties and liabilities upon her citizens, in respect to side-walks, and the removal of snow therefrom, without increasing or extending her own.

The points made by Mr. Jencks, for the defendant in error, were the following:--

1. That the statute of Rhode Island entitled 'An act for the mending of highways and bridges,' imposes upon the towns and cities of that State, the duty of keeping highways in a safe and convenient condition for travellers, at all seasons of the year, and creates a liability on the part of such town or city, to any person using such highway with ordinary and proper care, who suffers injury in consequence of any defect in such highway, or obstruction thereon which the town or city might have removed by the use of ordinary care and diligence, and which while thus negligently suffered to remain, rendered such highway inconvenient and unsafe. Cassedy v. Stockbridge, 21 Vermont, 391. Frost v. Portland, 11 Maine, 271; Bigelow v. Weston, 3 Pick. 267; Springer v. Bowdoinham, 7 Greenl. 442; Raymond v. Lowell, 6 Cush. 534.

2. That this duty and liability extends to side-walks when they constitute a part of the highway or public streets; and such side-walks are required to be kept in a safe and convenient condition for pedestrians, as the roadway is for horses and carriages. Brady v. City of Lowell, 3 Cush. 121; Bacon v. City of Boston, Ib. 174; Drake v. City of Lowell, 13 Met. 292.

3. That the degree of convenience and safety which is required by said statute, and the degree of care and diligence which the towns and cities must bestow upon the highways, in order to relieve themselves from liability under the statute requirement, have relation to the nature and uses of the highway, and the frequency of its uses. That the same standard is not to be applied to the principal thoroughfares of the city of Providence, as to a cross road in the country, but that the law as to the extent of repair, and what will constitute obstructions rendering a public way unsafe and inconvenient, must depend, in a good degree, on the locality of the road.

4. That the law is the same when applied to obstructions of highways or side-walks by snow, as to any other obstruction, and the duties and liabilities of towns and cities in reference to the want of safety and convenience in their highways, caused by snow, as when caused by other obstructions.

That the latter clause of the first section of the statute does not vary or limit the duty imposed by the first clause, but is directory to the surveyor of highways in the performance of his duty; and that the word 'passable,' means safely and conveniently passable, as well when applied to side-walks, as to the other portions of the travelled highway. Loker v. Brookline, 13 Pick. 343.

5. That the several statutes of Rhode Island, concerning side-walks in the city of Providence, authorize the construction of side-walks in said city, and such side-walks being constructed and accepted by the city, under the authority of said act, it becomes the duty of the said city to keep said side-walks in a safe and convenient condition for pedestrians, at all seasons of the year. That whenever a fall of snow shall render any such side-walk, not conveniently safe and passable, the city is bound to use ordinary care and diligence to restore said side-walk to a reasonably safe and convenient state. That the statute referring generally to all highways, and all parts of such highways, points out the two modes, one of removing the snow, and the other of treading it down, for the purpose of rendering such highways safe and convenient; and the city of Providence, by their ordinances, have prescribed the rule for themselves and their citizens, by directing a removal of the snow from the side-walks, and have provided for the enforcement of this rule by their officers, and by penalties on the owners and occupants of estates.

6. That the public statute contemplates a removal of the snow in some cases, and a treading down in others, is manifest from the nature of the obstruction itself; it being an obstruction to travellers with sleds and sleighs, only when drifted or lying light, and subject to drift; as when trod down it greatly facilitates all travelling with vehicles adapted to the altered condition of the roads. But snow, under all conditions, is an obstruction to the pedestrian, and his safety and convenience are best provided for by an entire removal of it from his path. Hence the obligation to make the pathway set apart for such travellers, safe and convenient, in a large city, and along one of its principal thoroughfares, is not satisfied by leaving the snow to be trod down as it fell in drifts, or to be thawed and frozen into ridges of several inches in height, in such a manner as to throw down pedestrians using ordinary care and caution, although the side-walk might be passable in the sense that the snow was to be waded through or climbed over, or otherwise avoided by such travellers.

Mr. Justice NELSON delivered the opinion of the court.