ROSE L. COBB and JOHN COBB, Her Husband, Appellants,
SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded with directions.
Messrs. Stockton & Karam, Mr. Eli Gorodezky and Mr. J. W. Cherry, Jr., for Appellants.
Messrs. Sloan, Scott & Green, for Appellee.
[57 Ariz. 452] ROSS, J.
This is an appeal by Rose L. Cobb and John Cobb, her husband, from an order directing a verdict in favor of defendant, Salt River Valley Water [57 Ariz. 453] Users' Assocation, at the close of plaintiffs' case, and from a judgment rendered thereon.
The action is one for injuries sustained by Mrs. Cobb from a fall on the sidewalk in front of defendant's office building, located on West Van Buren Street at its junction with Second Avenue, in Phoenix. It appears from the complaint and the evidence that the defendant's premises abut on the sidewalk on the south side of Van Buren Street and that a portion thereof is maintained as a lawn or grass plot; that on the day Mrs. Cobb was hurt, defendant's gardener had been watering the lawn with a hose and that as a result thereof a thin stream of water, 10 or 12 inches wide, had seeped onto and over the sidewalk; that the plaintiffs, in going to where they had parked their automobile, had to pass over said sidewalk and when Mrs. Cobb stepped thereon her left foot slipped "and her feet flew out from under her"; that the place where she slipped "was inclined to be slick," caused by a mixture of the water with silt or dirt from the street or lawn. The sidewalk is concrete. The accident happened about twelve o'clock, noon, on a clear day in April, 1939. The question is, were the facts sufficient to take the case to the jury.
The abutting owner of property, it is said, has two distinct rights: the one public, which he enjoys in common with all citizens, and private rights which arise from his ownership of contiguous property. 44 C.J. 942, § 3708. Of the latter kind there are many rights, such as access, light, air, privacy, and others, but we find no case holding that such owner has a right to run waste water used to sprinkle or irrigate his lawn on or across the sidewalk in front of his premises, or to do any other affirmative act impairing the safety of such sidewalk.
[57 Ariz. 454] The owner of property abutting on a public street is under no common-law duty to keep it in repair. If, through natural causes, it becomes dangerous and persons traveling thereon are harmed thereby, he is not liable therefor. If, from falling snow or rain, ice is formed in front of his premises and a pedestrian steps on it and falls, he is not liable for any resulting injuries. He does, however, owe a duty to the public to do no affirmative act that will create a dangerous condition in the street fronting his property. He may not, for instance, by artificial means discharge water or snow upon a sidewalk or street at a time when the natural result would be to form ice and claim exemption from liability for resulting injuries to a pedestrian. 43 C.J. 1102, §§ 1865, 1866. It is said in Schwartz v. Howard Savings Institution, 117 N.J.L. 180, 187 A. 171, 172:
"... An owner is responsible for defects in the sidewalk caused by his affirmative wrongdoing or negligent use of such sidewalk for other than its intended purpose...."
The court in Bullard v. Mattoon, 297 Mass. 182, 8 N.E.2d 348, 349, states the rule as follows:
"A landowner 'has no right to collect water into a definite channel by a spout or otherwise and pour it upon a public way. If he does this and through the operation of natural causes the water freezes, he is the efficient cause in the creation of a nuisance and is liable for whatever damage ensues as a probable consequence.' Field v. Gowdy, 199 Mass. 568, 570, 571, 85 N.E. 884, 885, 19 L.R.A. (N.S.) 236. This principle applies whether water so collected is poured directly on the street, Shipley v. Proctor, 177 Mass. 498, 59 N.E. 119, Leahan v. Cochran, 178 Mass. 566, 60 N.E. 382, 53 L.R.A. 891, 86 Am. St. Rep. 506, Cerchione v. Hunnewell, 215 Mass. 588, 102 N.E. 908, 50 L.R.A. (N.S.) 300, or is deposited some distance from the street but flows down a concrete walk, Field v. Gowday, supra, or a sloping bank, Cochran v. Barton, 233 Mass. 147, [57 Ariz. 455] 123 N.E. 505,or other graded area on the owner's premises to the highway...."
This seems to be the rule everywhere. Whatever it is that causes the harm to the pedestrian, if it is the affirmative act of the abutting owner, whether it be from the freezing of melting snow or rain cast on the sidewalk by such owner (Douglas v. Johnson (Sup.), 16 N.Y.S. (2d) 644, Troy v. Dix Lumber Co.,300 Mass. 214, 15 N.E.2d 272), or escaping oil (Collais v. Back & Bowers Oil Co.,175 Wash. 263, 27 P.2d 118), or wet vegetable leaves left on sidewalk (Fadem v. City of St. Louis, (Mo. App.) 99 S.W.2d 511), ...