INJURY DUE TO FALL ON SIDEWALK COVERED WITH ICE.

Court of Appeals for Lucas County.

#### Frances Ritter v. City of Toledo.

Decided, March 27, 1916.

*Sidewalk—Icy Condition—Pedestrian Injured by Falling—Liability of Municipality—Walk Structurally Defective—Distinguished from One Built on an Incline.*

A petition to recover damages for personal injuries caused by slipping on an icy sidewalk, where the only complaint made against the walk is that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action.

*Graves & Stahl,*for plaintiff in error.

*Harry S. Commager,*Director of Law, and *Charles T. Law-ton,*contra.

Richards, J.

The action was commenced in the common pleas court to recover damages for a personal injury resulting from falling on an icy sidewalk. The petition was met with a demurrer, which was sustained in the trial eonrt, and, the plaintiff not desiring to plead further, final judgment was rendered dismissing her petition, and to this action of the court she prosecutes error.

The allegations in the petition as to the precise location and situation of this walk are somewhat complicated, but for the purpose t>f determining the point involved it is only necessary to say the petition discloses that the walk was a slanting or inclined walk, extending a distance of seven feet from the outer line of the sidewalk to the curb line, and that in said seven feet the extent of the incline is ten inches. The petition alleges that five or six days before the injury this sidewalk became covered with ice and was very slippery, and that the plaintiff had no knowledge of its dangerous condition, but that its condition was known to the defendant or would have been known to it in the exercise of ordinary care.

*444The simple question for determination is whether these allegations show such a condition as casts a liability on the city. Counsel for plaintiff insist that the petition is sufficient and that the allegations, if established by evidence, would require that the case be submitted to a jury, and to sustain this position they rely very largely on the case of *Gibbs*v. *Village of Girard,*88 O. S., 34. In that case the record disclosed what is called in the opinion a “sudden and immediate two inch drop” in the sidewalk, and it was held that the ease should have been submitted to the jury to determine as to the negligence of the village. 'That case was disposed of on a motion for a directed verdict, and the Supreme Court held that, for the purposes of the motion, the defect must be admitted. We can not extend the doctrine of the Girard case, founded, as it is, on a defective walk, to one where the only criticism of the walk is that it is built on an incline, as set forth in this petition. The ease there under consideration was one of a defective walk, and we have, therefore, to inquire whether the condition of the walk, as set forth in the petition in this ease, discloses that the walk was defective.

We can not hold that a walk which is built on an incline of ten inches in seven feet is a defective walk, nor one which of itself renders the municipality liable in damages to persons injured by falling thereon. To so hold would result in the bankruptcy of municipalities which were so unfortunate as to be built in hilly localities. A sidewalk in order to have drainage must be built either on a slant or crowning, and it could hardly be said that it was negligence for a municipality to permit a walk to remain in such condition; and neither can it be said that it is negligence to construct a walk on a street which is not level.

The Supreme Court held in *Chase*v. *City of Cleveland,*44 O S., 505, that it was not actionable negligence for a city to suffer ice and frozen snow to accumulate on a sidewalk and be beaten smooth and slippery, and for that reason dangerous to those passing along it; and it is said in that case that the condition was transient in character and not such as to ordinarily require the interference of the city authorities for its abatement, *445the duty of the municipality being only to exercise ordinary care. To prohibit the construction of such a walk as is described in the petition in this case, or to hold municipalities liable by •reason thereof, would be impracticable.

Another case to which I call attention -is *City of Norwalk*v. *Tuttle,*73 O. S., 242. In that case a recovery was denied the plaintiff for damages suffered by falling on an icy sidewalk, because the conditions did not disclose any structural defect in the walk, and the city was not liable for the icy surface, that slippery condition being the result of natural causes.

Under the doctrine of the two cases last cited, a recovery would be impossible in the case at bar without holding that the walk as constructed was structurally defective; and to so hold would overturn fundamental principles and be manifestly unjust to municipalities. A petition to recover damages for an injury caused by slipping upon an icy sidewalk, where the only complaint made against the walk is that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action and the demurrer thereto was properly sustained.

The judgment of the court of common pleas will be affirmed.

Chittenden, J., and Kinkade, J., concur.