dissenting:
That cities and villages are bound to exercise reasonable care to keep streets within their corporate limits in repair and free from dangerous obstructions, is the settled law in this State. The obligation resting upon them in this regard is not less imperative than if imposed by statute.
In the case before us, the negligence charged as the ground of liability, is, the defendant city suffered snow and ice to accumulate, at the point where plaintiff fell, in such quantities as that it became dangerous to persons passing over the street, although using due care and caution. Previous to the happening of the accident there had been a fall of snow; it was not removed from the sidewalk, and in consequence of travel thereon it had formed in ridges a few inches in height, of the width of about a foot at the base, sloping from the center in either direction. "There is evidence that a water conductor from an adjoining building emptied upon an awning immediately over the sidewalk where the accident happened. A defect in the awning permitted the water from the conductor to fall upon the sidewalk below, where, freezing, it formed a cake of ice.
The obstructions complained of, were no sudden formations. They had been forming so long they must have been known to the city authorities, whose principal office was in the immediate vicinity.
The location of these obstructions was upon one of the principal streets of the city. At the time of the injury to plaintiff many persons were passing over it, going to and from the post office.
Accumulations of ice and snow on the sidewalk at this point were not common to all the streets of the city, but their dangerous character was produced to a great extent by artificial causes. Water from the conductor of the next adjoining building falling on the sidewalk, by the action of the elements, formed considerable quantities of ice. Snow had been suffered to lie upon the sidewalk until, by travel upon it, ridges had been formed. While passing over these obstructions, plaintiff, although observing due care, fell and sustained a severe, and, perhaps, permanent injury of the hip and lower part of the spine.
A municipal corporation is not bound to keep its streets entirely free from ice and snow; were this even practicable, by the utmost exertions, and the expenditure of money and labor, it would impose upon such corporations unreasonable burdens. When they have done what is reasonable in this regard they have discharged the obligation the law imposes upon them. Nor are they to be held liable for every mere accident that may happen within their corporate limits.
Where an injury results from the slippery condition of the streets, which is generally produced by the prevailing storms of the season, it has always been held there is no liability on the municipality. The rule is a reasonable one, and accords with our sense of justice. Against such conditions it is not possible to provide by any ordinary watchfulness; but where snow and ice are suffered to accumulate in ridges or irregular e e i ® heaps in particular localities on sidewalks, to such an extent as to become dangerous, and which could have been prevented by ordinary diligence of the municipal officers, the authorities, so far as I have examined them, are all to the effect the city or village will be liable to any person injured in consequence of such obstructions. City of Chicago v. Smith, 48 Ill. 107; City of Centralia v. Krouse, 64 Ill. 19; Corydon v. Norwich, 37 Conn. 414; Cook v. Milwaukee, 24 Wis. 270; Lather v. Worcester, 97 Mass. 268; Hutchins v. Boston, 97 Mass. 272; Street v. Holyoke, 105 Mass. 82; Gilbert v. Roxbury, 100 Mass. 185; Providence v. Clapp, 17 Howard, 165; McLaughlin v. Corry, 77 Penn. State R. 109.
Host of these decisions were made in reference to statutes making it the duty of cities and towns to keep their streets and highways in repair and safe for the ordinary travel, to persons using proper care. But such a duty and liability are considered to exist and obligatory upon municipal corporations without any positive statute imposing such duty and liability, as has been repeatedly held by decisions of this court. They are none the less authorities upon the exact point we are considering, viz: that unusual accumulations of snow and ice, in irregular forms or heaps, like any other obstruction, maybe a defect in a street or sidewalk. It is always a question of fact, to be found from the evidence, whether such obstructions are of a dangerous character to persons observing due care for their own safety, and whether they have been negligently suffered to remain for an unreasonable time after the knowledge of their existence had come to the notice of the corporate authorities, or whether the same could have hpen discovered by the exercise of ordinary diligence.
The injury to plaintiff was not attributable to any slippery condition of the sidewalk, common to all the walks of the city, produced by the action of the elements; but was caused by the uneven masses of snow and ice that the city had permitted to form, and perhaps more directly by the ice-cake that had formed from the leak in the awning. The condition of the sidewalk at that point ivas of considerable duration, was readily observable by all persons, and we must believe the city authorities had notice of it; the principal office was near by; it was the duty of the city to have caused the ridges of snow and ice to be leveled, and the ice-cake removed. The obstruction was confined to a single locality, and could have been removed with as little difficulty as any other temporary defect. Had it been in an unfrequented part of the city, no doubt a less degree of care would have been required on the part of the city authorities; but this was a most public place, in the vicinity of the post office, where persons were constantly passing at all hours of the day. Its dangerous character is proven beyond question, by the fact other persons had fallen there. Ho excuse whatever is shown for suffering the dangerous accumulations of snow and ice to remain so long. It can be attributed to no other cause than the negligent conduct of the city officers, whose business it was to attend to such matter, and for which neglect the city is responsible.
Ho negligence whatever is imputable to plaintiff. He had an asthmatic difficulty, which compelled him to walk slowly, and the proof shows he was observing more than ordinary care for his personal safety.
In my opinion, the conclusion reached by a majority of the court, is warranted by neither the law nor the evidence, and if adhered to it will work great injustice to a most unfortunate sufferer, and establish a most pernicious rule. It seems to me the opinion disregards not only all our former decisions, but the law applicable to such cases, as declared by courts of the highest authority in other States, and ignores, as I think, important facts found by the jury on the evidence in the case.
The judgment ought to be affirmed.