Slike stranica
PDF
ePub

places stated, which were the polling-places fixed by the county board for holding general elections, and by proper officers. Of the votes cast at these four polling-places, where it is conceded the election was held according to law, respondent received a majority of the votes so cast over his opponent, Mr. Fry. If the votes in districts Nos. 3 and 6, where it is insisted irregularities intervened, should not be counted, still respondent would have a majority of all the votes cast at such election. There was no candidate opposed to respondent except Mr. Fry, and it does not appear he ever claimed to have been elected at that election, or at any other time.

What is it, then, if anything, that renders the election of the twenty-fourth of October, 1885, void? It was held in the several districts of the township at the time mentioned in the notice, and every legal voter was afforded an opportunity to vote for the candidate of his choice. The only irregularities in the Third district, in conducting the election, is that it is admitted by the plea the polling-place, on the morning of the election, was changed from Kuhn's Hall to Kuhn's real-estate office. It will be seen the averment is: "Kuhn's real-estate office is the place in that district fixed by the county board where all general and special elections shall be held. The notice given by the treasurer seems to have stated the election would be held at Kuhn's Hall. All that was done was, on the morning of the election, to change the pollingplace from the hall to the real-estate office, which was the proper place fixed by the proper authorities for holding the election. The buildings were not more than 200 feet apart, in plain sight of each other, with open space between. Every voter could readily see what was done. Indeed, the buildings were in fact so near together, they were practically at the same place. So slight a change in the place of the voting ought not to render void an election in all other respects regular and according to law; especially so when it is admitted no one was prevented from voting at such election on account of the change of the polling-place. As was said in this court in Chicago v. People, 80 Ill. 507: "It is not perceived wherein the change made was calculated to produce any injurious effects, and we think it should not be held sufficient grounds to invalidate the election." Dale v. Irwin, 78 Ill. 170.

With respect to the polling-place in Norwood Park district it appears from the averments of the plea the county board had divided the town of Norwood Park into two voting districts, with a polling-place in each, and with one-half of the territory of each such voting district within township 40, where the election was to be held. It also appears only one polling-place was used at this school election in the part of the town of Norwood Park within township 40, but it is alleged the place so used was nearer the center of that part of the town of Norwood Park within township 40 than were either of the polling-places fixed by the county board to be used at general elections in that town for polling-places for the two voting districts into which the town of Norwood Park was divided. The polling-place appointed in Norwood Park district was the usual place for school elections, and it appears the three last elections for school trustees had been held at that place, and the allegation is, this fact was well understood by the electors of the township. It is alleged, and of course admitted by the demurrer, the districts, taken together, embraced the whole of the township, and no more territory, and that no person entitled to vote at such election failed to do so by reason of any insufficiency in the number of polling-places appointed, or by reason of any misunderstanding of the boundaries of any district for which polling-places were appointed. The law does not contemplate there shall be more than one polling-place in each district, and it seems it would not have been practicable to hold an election for school trustee at both polling-places fixed by the county board for holding general elections in the two districts composing the entire town of Norwood Park. It was therefore proper for the board of trustees to appoint as a polling-place in Norwood Park the place at which school elections

had been previously held. It was well understood by the electors, and no one ever complained he was incommoded or prevented from voting at such clcction on account of the polling-place selected.

The only remaining question to be considered has reference to the removal of the polling-place in the Norwood Park district on the morning of the election before the voting commenced. The polling-place first appointed was at Ball's store, but it was changed from that place, across the railroad, to Fox's store; and it is averred, in this connection, no voter in the district was ignorant of the change made, or failed to vote at such election by reason of the change in the polling-place. What was said in respect to changing the polling-place in district 3 applies with equal force to changing the polling-place in Norwood Park district. No great or material change was made of the polling-places in either district; and it is distinctly made to appear no voter was ignorant of such changes, or failed to vote on account of the changes made in the polling-places. The election was as full and fair, so far as anything appears from the record, as it would have been had no changes been made as to the place of receiving the votes. Every elector was afforded an opportunity to vote for the candidate of his choice. Any such change in polling-places as would mislead electors, or prevent a full and fair election, would, of course, render the election invalid; but in this case it is made to appear no injurious effects followed from the slight changes made in the polling-places as was done, and this court is unwilling to hold that mere trivial causes will invalidate and render void an election otherwise full, free, and fair. Public policy forbids the adoption of any rule that would work such disastrous results, and defeat the expression of the popular will at elections.

There is yet another view that may be taken, and that is, if the election held in the Third district and in Norwood Park district should be held to be invalid on account of changing the polling-places, as was done, and the votes of both districts rejected, still, as has been seen, respondent would have been elected by the legal votes cast at the election in the other districts. The result is precisely the same whether the votes cast in district No. 3 and in Norwood Park district be counted or not. In either case it would appear respondent was elected, and can hold the office until his successor shall be elected according to law.

Holding, as is done, the election set forth in the first plea gave respondent a valid title to the office he is charged with usurping, the demurrer to the plea should have been overruled. This view disposes of the whole case, and it will not be necessary to consider any question supposed to arise on the second plea.

The judgment of the appellate court will be reversed, and the cause remanded to the circuit court.

(44 Ohio St. 505)

CHASE v. CITY OF CLEVELAND.

(Supreme Court of Ohio. December 7, 1886.) MUNICIPAL CORPORATIONS-DEFECTIVE WAYS-ICE ON SIDEWALK-LIABILITY THEREFOR

-PLEADING-INSUFFICIENT PETITION.

In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred is a public highway within the corporate limits; that, upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident,-are not sufficient to show negligence.1 (Syllabus by the Court.)

Error to common pleas, Cuyahoga county. Reserved in the district court. The plaintiff commenced her action by filing in the court of common pleas of Cuyahoga county a petition, which is, in substance, as follows: At all the times hereinafter mentioned the defendant was, from thence hitherto has been, and still is, a municipal corporation, being a city of the first class, and, as such corporation, it had and has custody, care, and supervision of all the public streets and highways within the corporate limits of said city, and was and is bound to keep the same free from obstruction and danger, and safe for persons passing along the same. On the third day of January, 1878, Wood street was a street and public highway within said corporate limits, and it was then and there the duty of defendant to keep said street, and the sidewalks thereon, and forming part thereof, safe and free from the accumulations of ice or snow which might become dangerous to persons passing along the same, to acquaint itself with any dangerous obstructions or accumulations of ice or snow casually occurring, and to forthwith remove the same upon obtaining such knowledge. Yet defendant disregarded its said duty in the premises, and did not keep said sidewalks free from accumulation of snow and ice dangerous for such persons; and, either failing to acquaint itself with the existence of such dangerous accumulation of ice and snow, else knowing thereof, did not remove such dangerous accumulations upon said sidewalks upon having notice thereof. On said third day of January, 1878, and for a number of days next preceding, defendant had carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk on the west side of Wood street, between Rockwell and St. Clair streets, in front of land then occupied by G. H. Adams, so as to become dangerous for persons passing along the same; said ice and snow having been beaten smooth and slippery, so that children had made a slide there, which had been there for some days previous. Of all which defendant had or might have informed itself in time enough to have made said sidewalk safe before the occurrence of the accident hereinafter mentioned. On said third day of January there had been a light fall of snow so as to cover and conceal said slide, and slippery and dangerous condition of said ice and snow and sidewalk, from persons passing along the same. As plaintiff was passing along said sidewalk, in the usual way, using all due care, and ignorant of its slippery and dangerous condition, she fell and was injured, etc., which accident and damages were caused wholly by defendant's negligence. A prayer for judgment follows.

To this petition a demurrer was filed by defendant, which was sustained, and judgment rendered against plaintiff. Upon error prosecuted to the district court the cause was ordered reserved to this court.

1 See Nebraska City v. Rathbone, (Neb.) 29 N. W. Rep. 920, and note.

v.9N.E.no.3-15

Mix, Noble & White, for plaintiff in error. A. T. Brinsmade, City Sol., for defendant in error.

SPEAR, J. It will be noticed that there is no allegation in this petition that the walk was itself defective. No improper construction is charged, nor is it alleged that the walk was in such condition as to be peculiarly liable to cause the formation of ice; nor was the ice rough or uneven. The place where the accident occurred does not even appear to have been upon a slope or incline. So far as the charge of negligence on the part of the defendant is concerned, the gravamen of the complaint is: (1) The defendant is a city of the first class; (2) Wood street is a street within the corporate limits; (3) for a number of days next preceding the accident, the city had carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk in front of the property of a private owner.so as to become dangerous for persons passing along the same, having been beaten smooth and slippery, so that children had made a slide there, which had been there for some days previous, of all which defendant had or might have informed itself in time to have made the walk safe before the occurrence. Cutting this charge in fewer words, it appears that the defendant is a city of the first class. Wood street is one of the public highways. On a sidewalk of this street, in front of private property, the city suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason to become and remain dangerous. Of this condition of the walk the city might have informed itself in time enough to have made it safe before the accident. Is this a sufficient charge of negligence? To show negligence it must be made to appear (1) that the city had notice, actual or constructive, of the dangerous condition of the walk in time to remedy it; and (2) that, having such notice, it was the city's duty to remedy it.

As to the first. For all that appears, Wood street may be a street lying on the outer limits of the corporation. It may be a street but little improved, but little used, and but little frequented by the general public. If, therefore, as to every part of every public highway within the municipality it was the duty of the city to take unusual means and use extraordinary care to keep itself advised of the condition of the walks, then such duty attached to this part of Wood street; otherwise not. We say "extraordinary care," becausə the allegation that the city "had or might have informed itself," etc., means only that it might have informed itself, which is another form of saying that it was possible to have obtained the information. The terms "a number of days" and "some days" may mean two days or more. Neither necessarily indicates a greater number than two. Now, as to the most public and frequented streets, it may be that the allegation that the accumulations were there a number of days, or some days, is sufficient to cause notice to the city to be presumed; but this would not necessarily be so as to out of the way streets, and those remote from business centers. It would be improbable that any city official who owed any duty in that regard would pass in the time stated under such circumstances, or to make it incumbent on him to observe the condition of the walk, or that the proper city authorities would be informed of its condition from other sources. The allegations referred to are therefore clearly insufficient to show notice to the city. So that the plaintiff is remitted, as to this essential element, to the allegation that it was possible for the city to have obtained the information, We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their ways, or of the lives and limbs of pedestrians. The law provides that such corporations shall have the care, supervision, and control of the streets, and shall cause them to be kept open and in repair, and free from nuisance. This requires a reasonable vigilance, in view of all the surroundings, and does not exact that which is

impracticable. When the authorities have done that which is reasonable in this regard, they have discharged the entire obligations imposed by the law. They are not bound to use all possible vigilance in inspection or in obtaining information.

This view, if correct, disposes of the case; but, waiving this, is the petition free from infirmity in other respects? The city is bound to exercise due care to keep the streets and walks reasonably and relatively safe, but cannot be required to make all streets and walks absolutely safe, or equally so. The complaint is that the walk was dangerous by reason of accumulations of ice and frozen snow, which rendered it slippery. The result was due in part to the elements, and in part to the beating down of the ice and snow; especially by children sliding on it. If, then, the city of Cleveland, as to all the sidewalks within the corporate limits, is liable for accidents which occur by reason of slippery sidewalks, of the condition of which it has notice, then, were notice shown here, it would be liable to the plaintiff in this case. It is insisted that there is such liability. If this be the law, an onerous burden is cast upon many of our municipal corporations. In all northern cities and towns, storms of snow and sleet, producing ice, and resulting in slippery walks, are of frequent and constant recurrence during the winter season, and accidents of the character complained of are also frequent. Such dangers are apt to exist in many places at the same time, and at points widely separated from one another. They appear at many points to-day, disappear to-morrow, and like dangers appear at other places the next day. They are affected by changes of weather, which are likely to occur at any time, and frequently many times within a few hours. It is not unreasonable to assume that there were hundreds of similar dangerous places in the city of Cleveland at the time of the accident to plaintiff. To effectually provide against dangers from this source would require a large special force, involving enormous expense; for, to make the protection effective, constant activity and vigilance would be required, as well in the ascertainment of the dangers as in their removal upon being known. Such duties do not naturally fall within the province of the police force, as that force is not a city agency for any such purpose. It would be possible to employ and pay a special force, but it does not follow that it would be reasonable to require it.

Regarding the removal of dangers, as well as regarding watchfulness in ascertaining their existence, the municipality is bound to exercise only ordinary care; to take such measures as are reasonably to be required, and adequate in view of the ordinary exigencies. The condition of the walk in this case is not complained of as a defect in the sidewalk, but rather an accumulation on it which created a nuisance. This was transient in its character, and not such as to ordinarily require the interference of the city authorities for its abatement. Those authorities are empowered to clear the streets from snow and filth, and, by ordinance, to require property owners to keep the walks cleared of snow and ice; but, ordinarily, liability does not attach for a failure to do so. Slipperiness may arise from a variety of causes. A thin film of mud on the walk will often produce it, and yet liability would hardly be claimed to arise from such cause. It is not clear, on principle, that an exception should necessarily be made in regard to slipperiness from accumulations of ice.

We have considered the numerous authorities referred to by counsel in the able and elaborate printed brief, and have read the argument with much pleasIt invites to an extended discussion of the subject, and a review of the authorities. We doubt whether good would result from extended discussion, or from an attempt to weigh the arguments in the conflicting decisions of other states, or even from a lengthy review of those decisions, and hence do not enter upon either, but are content to rest this branch of the case, as to the duty of the city regarding removal of ice from the sidewalks within the munici

« PrethodnaNastavi »