Trost v. The City of Casselton

• Decision Date: 10 July 1899
• Court: North Dakota Supreme Court

79 N.W. 1071

8 N.D. 534

MARGARET TROST v. THE CITY OF CASSELTON

Supreme Court of North Dakota

July 10, 1899

Appeal from District Court, Cass County; Pollock, J.

Action by Margaret Trost against the City of Casselton. From a judgment for plaintiff, defendant appealed.

Reversed.

Judgment reversed, and judgment entered dismissing the complaint.

Pollock & Scott, for appellant.

The damages are excessive, the plaintiff, a woman of sixty years received by her fall a bruised arm and shoulder. Dr. Hormell the only expert for plaintiff, indicated that in his opinion the fall may have caused or aggravated an attack of heart trouble. If chronic heart trouble aggravated the injury, the jury should have found what part of the damage was caused by the fall and what part by chronic disease, and have charged the defendant only with the damage caused by its negligence. Shumway v. Walworth, 57 N.W. 251. There was no evidence that the accident was caused as alleged in the notice of claim and in the complaint, viz: by reason of a dangerous obstruction of ice and snow. The evidence did not disclose that the accident was the direct or proximate cause of the damage alleged to have been suffered. Dolan v City, 61 N. W. Rep 564; Laue v. City, 57 N.W. 93; Weber v. Greenfield, 42 N.W. 101. If the plaintiff can show that the defendant had knowledge of all the facts which the law requires to be set forth in the notice, the court can as consistently hold that the giving of city notice of claim is unnecessary and might be dispensed with. This, however, is not the law. Shalley v. Danbury Ry. Co., 30 A. 135; Underhill v. Town, 46 Vt. 771; Van Loan v. Village, 60 N.W. 710. The insufficiency of the notice of the accident was a matter of law for the court. Owens v. City, 67 N.W. 281; Salzer v. Milwaukee, 73 N.W. 20. The object of the statute is to make it necessary for a claimant to inform the city council correctly as to the time when the injury occurred, place where and the cause of the injury. Nichols v. Minneapolis, 16 N.W. 410. The statute is mandatory and must be strictly pursued. Gardner v. City, 28 A. 42; Crocker v. Hartford, 34 A. 98; Underhill v. Town, 46 Vt. 771; Christie v. Board, 60 Cal. 164. Neither the allegations in the complaint nor the evidence justified the Court in submitting to the jury the question of damages for future suffering because of the injury. McBride v. St. Paul, 75 N.W. 231; L'Herault v. Minneapolis, 72 N.W. 73; Comasky v. Ry. Co., 3 N.D. 276. The city was justified in waiting a reasonable time the action of its citizens in clearing the walks from snow. Taylor v. Yonkers, 105 N.Y. 202. The efforts made by the city officers to keep the streets in a reasonably safe and passable condition under the circumstances, were such as are required of such officers and the city is not liable as for negligence. Burr v. Plymouth, 48 Conn. 460; Hayes v. Cambridge, 136 Mass. 402; Harrington v. City, 121 N.Y. 147.

S. B. Bartlett and Benton, Lovell & Bradley, for respondent.

The street commissioner knew of the character of the obstruction immediately after the accident. Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676; Chacey v. Fargo, 5 N.D. 173, 64 N.W. 932. Notice to the street commissioner is notice to the city. Saylor v. City, 39 P. 653; Patterson v. Austin, 39 S.W. 976; Powers v. Council Bluffs, 50 Ia. 197. An application for a new trial on the ground of surprise should be viewed with caution and proof of surprise conclusively shown. Gaines v. White, 47 N.W. 524. A party failing to inform the Court of surprise and to apply for continuance because of surprise waives his right to object afterwards. Turner v. Morrison, 11 Cal. 21; Washer v. White, 16 Ind. 136; Shellhous v. Ball, 29 Cal. 608; Dewey v. Frank, 62 Cal. 343; Bell v. Gardner, 77 Ill. 319. The jury's verdict as to damages will not be disturbed unless unsupported by proof. Halley v. Pelson, 48 N.W. 219; Taylor v. Jones, 55 N.W. 593; Franz Falk Brewing Co. v. Mielenz, 37 N.W. 728. The fact that the injury was aggravated by disease does not require a specific instruction changing the measure of damages. Stewart v. Ripon, 38 Wis. 584; Allison v. Chicago, 42 Ia. 274; Baltimore v. Kemp, 61 Md. 74; Jeffersonville v. Reilly, 39 Ind. 568; Houston v. Leslie, 57 Tex. 83. The existence of the obstructed condition of the sidewalk for twelve or thirteen days before the accident was sufficient to show constructive notice. Howe v. Lowell, 101 Mass. 99; Sheel v. Appleton, 5 N.W. 27; Scoville v. Salt Lake City, 39 P. 481; Billings v. Worcester, 102 Mass. 329; Dooley v. Meridan, 44 Conn. 117; Pomfrey v. Saratoga Springs, 104 N.Y. 459. It was neglect on the part of the defendant to permit accumulations of snow upon the sidewalk. Wyman v. City, 34 A. 621; Koch v. Ashland, 60 N.W. 990; Huston v. Council Bluffs, 69 N.W. 1130; Adams v. Chicopee, 18 N.E. 231; City v. Niles, 12 P. 632; City v. Smith, 45 N.W. 41; City v. Cox, 62 N.W. 66. The question as to whether the city used due diligence is settled by the jury's verdict. Black v. Walker, 7 N.D. 414, 75 N.W. 787; Taylor v. Jones, 3 N.D. 235. If the place be so described in the notice to the city that it can be identified with reasonable diligence, it is sufficient, and its sufficiency is not to be determined upon its merits alone but in the light of extraneous evidence of situation and surroundings. City v. O'Brien, 77 N.W. 76; Hutchings v. Inhabitants, 37 A. 883; Cross v. City, 33 N.Y.S. 947; Steadman v. City, 34 N.Y.S. 737; City v. Barron, 39 P. 989; Werner v. City, 28 N.Y.S. 226; Hyme v. Village, 58 N.Y. 413; Laird v. Town, 62 N.W. 1042; Blackington v. Rockland, 66 Me. 322; Laue v. Madison, 57 N.W. 93. Physical and mental pain, present and future, are proper elements of damage. 8 Am. & Eng. Enc. L (2d Ed.) 660 to 665; 1 South. Dam. (2d Ed.) § § 419, 421.

OPINION

BARTHOLOMEW, C. J.

Action against a city to recover for personal injuries resulting from a fall occasioned by an alleged obstruction of snow and ice upon the sidewalk. Verdict for plaintiff, new trial denied, judgment upon the verdict, and defendant appeals.

Section 2172, Rev. Codes, declares: "All claims against cities for damages or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of any city or from the negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge, shall, within sixty days after the happening of such injury or damage, be presented to the mayor and common council of such city by a writing signed by the claimant and properly verified, describing the time, place, cause and extent of the damage or injury." The two following sections make a failure to give the notice as specified an absolute bar to any recovery. A notice was given in this case in due time. It located the obstruction, and consequent fall, upon the sidewalk "in front of the southwest corner of lot seven, block fifteen, First addition to the City of Casselton." Lot 7 is the southwest corner lot in said block. It faces west on Fifth avenue. Third street runs along the south side of lot 7. The notice therefore located the injury at the intersection of these thoroughfares at the southwest corner of said lot 7, and such was the wording of the original complaint. The undisputed testimony showed that the accident occurred at a point 100 feet north from said corner. At the close of her evidence, plaintiff, by her counsel, asked leave to amend her complaint, to locate the obstruction and injury to correspond with the evidence. This was opposed by defendant upon the ground that it was a departure from the notice. The amendment was allowed. Defendant moved to dismiss the action upon the ground of the insufficiency of the notice, and also moved for a directed verdict upon the same ground. These motions were denied, and the Court instructed the jury as follows: "The question here for you to determine is whether the description in the notice was sufficiently accurate to warn the defendant of the locality of the injury, and thus permit it to take such action as the law would require in the premises. To determine this fact, you are to consider the evidence as to the premises, and the nearness or distance of the location, as given in the notice, to the exact place of the injury, and the probability whether the notice, given in the form it was, was sufficient to direct the defendant to the exact location of the injury. If it was not, then you must find for the defendant." To this instruction there was an exception. It will thus be seen that the defendant at all times raised the question of the legal sufficiency of the notice. It is defendant's contention that the sufficiency of the notice was, under the circumstances of the case, purely a question of law, and as matter of law the notice was insufficient. Defendant is clearly correct in both positions. It will be observed that there is no uncertainty or ambiguity in the notice concerning the place where the obstruction existed and the injury occurred. The language describes one place, and describes it so certainly that it necessarily excludes every other place. There is no room for construction, no room for doubt, no room for variation. Where the language used in the notice is of doubtful meaning, and honest minds might differ concerning it (Carr v. Ashland, 62 N.H. 665), or where the notice does not purport to locate the place with accuracy, but only generally as between different points (City of Lincoln v. O'Brien [Neb.] 56 Neb. 761, 77 N.W. 76), or including a considerable extent of highway (Fopper v. Town of Wheatland, 59 Wis. 623, 18 N.W. 514), or on a bridge of considerable length (Lyman v. Hampshire Co., 138 Mass. 74), it may be...