Baillie v. City of Wallace

• Decision Date: 02 October 1913
• Citation: 24 Idaho 706,135 P. 850
• Parties: CHARLES M. BAILLIE, Respondent, v. THE CITY OF WALLACE, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

135 P. 850

24 Idaho 706

CHARLES M. BAILLIE, Respondent, v. THE CITY OF WALLACE, a Municipal Corporation, Appellant

Supreme Court of Idaho

October 2, 1913

PERSONAL INJURIES-SIDEWALKS-ORSTRUCTIONS OF-POWER AND DUTY OF CITIES OVER-ORDINANCE-NOTICE OF OBSTRUCTION-CONSTRUCTIVE NOTICE-STRUCTURES OVER SIDEWALKS.

1. Incorporated cities and towns of this state possess a double character, the one governmental, legislative or public, and the other in a sense proprietary or private.

2. Under the provisions of sec. 1, art. 12, of the state constitution, it is provided that an incorporated city or town may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with its charter or the general laws of the state.

3. Under the provisions of sec. 81 of an act providing for the government of cities and villages (Sess. Laws 1899, p. 208) the city council, or board of trustees, is given the care supervision and control of all public highways, streets bridges, alleys, etc., within the city or village, and it is therein provided that they shall cause the same to be kept open and in repair and free from nuisance.

4. Under the provisions of subd. 23 of sec. 2238, Rev. Codes the city council may by ordinance or by-law provide for the removal of all obstructions from sidewalks, curbstones, etc., at the expense of the person placing them there, and the 25th subdivision of said section provides that ordinances may be enacted to prevent and remove all encroachments on and into all sidewalks, streets, etc.

5. Held, under the statutes of this state that power is conferred upon municipal corporations in respect to streets within their limits, and that it is their duty to keep them in a reasonably safe condition for use by travelers in the usual mode of travel, and that they are liable in damages for injuries resulting from the neglect of such duty, and this rule extends not only to the surface of the street or sidewalk but also to structures over them.

6. As to whether the city had constructive notice of the extension of said sign over the sidewalk was a question for the jury.

7. Held, that the evidence is sufficient to show that the city had constructive notice of the existence of said sign.

8. Held, that the city is liable in the first instance for permitting private parties negligently to place signs over the sidewalk or street, and that the corporation or person who places such obstructions over the sidewalk is liable to the city for whatever damages it has to pay for such unlawful acts.

9. As to what was the proximate cause of the plaintiff's injury was a question presented to the jury, and from their verdict they found that the proximate cause of the injury was the plaintiff's head coming in contact with said sign.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action to recover for personal injuries sustained by the plaintiff by reason of an obstruction over the sidewalk in the city of Wallace. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

J. E. Gyde and Featherstone & Fox, for Appellant.

It is not made the defendant city's duty to perform the governmental function of removing obstructions from the sidewalks or preventing or removing all encroachments upon or into sidewalks, but the power is simply vested in the city to enact ordinances or by-laws for these purposes. (4 Dill. Mun. Corp., 5th ed., sec. 1627, and cases there cited; Marth v. City of Kingfisher, 22 Okla. 602, 98 P. 436, 18 L. R. A., N. S., 1238; Wheeler v. City of Plymouth, 116 Ind. 158, 9 Am. St. 837, 18 N.E. 532; Hines v. City of Charlotte, 72 Mich. 278, 40 N.W. 333, 1 L. R. A. 844; Dooley v. Town of Sullivan, 112 Ind. 451, 2 Am. St. 209, 14 N.E. 566; Culver v. City of Streator, 130 Ill. 238, 22 N.E. 810, 6 L. R. A. 270; McDade v. Chester City, 117 Pa. 414, 2 Am. St. 681, 12 A. 421; Loth v. Columbia Theatre Co. , 197 Mo. 328, 94 S.W. 847.)

The authority vested in the city to enact an ordinance to remove the sign was a governmental power and the failure to enact, or even if enacted to enforce, would not render the city liable by reason of any injury caused through such failure. (Dyer v. City of Danbury, 85 Conn. 128, 81 A. 958, 39 L. R. A., N. S., 405, Ann. Cas. 1913A, 784.)

Objects which have no necessary connection with the sidewalk or relation to public travel, and the danger from which arises from casual proximity and not from the purpose of traveling thereon, will not render the sidewalk defective. (Hixon v. City of Lowell, 13 Gray (79 Mass.), 59; McLoughlin v. Philadelphia, 142 Pa. 80, 21 A. 754; Loth v. Columbia Theatre Co., supra; Dyer v. City of Danbury, supra; Hanrahan v. City of Chicago, 145 Ill.App. 38.)

The sign in question was not such a defect that a reasonably careful and observing man would notice. How, then, can it be said that it was such a patent defect as to impart notice to the city? (City of Fremont v. Dunlap, 69 Ohio St. 286, 69 N.E. 561.)

"A municipality is not an insurer against all defects, latent as well as patent, but its liability is for negligence. " (28 Cyc. 1394, and authorities cited; Cook v. Anamosa, 66 Iowa 427, 23 N.W. 907; Otto Tp. v. Wolf, 106 Pa. 608.)

The sign in question, if a defect at all, was such an obscure defect that it would not impart constructive notice to any officer. All that is required is that the city keep its streets and walks in a reasonably safe condition. (Miller v. Village of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107.)

A municipality is not guilty of neglect for every act of omission which would constitute negligence on the part of an individual. (Moreton v. Village of St. Anthony, 9 Idaho 532, 75 P. 262.)

There can be no recovery for injuries which might have been caused by several different agencies, some of which defendant was not responsible for, without proof of what was the cause of the injury. (Kenneson v. West End St. Ry. Co., 168 Mass. 1, 46 N.E. 114; Shore v. American Bridge Co., 111 Mo.App. 278, 86 S.W. 905; Meehan v. Great Northern Ry. Co., 13 N.D. 432, 101 N.W. 183; Musbach v. Wisconsin Chair Co., 108 Wis. 57, 84 N.W. 36; Nickey v. Steuder, 164 Ind. 189, 73 N.E. 117; Searles v. Manhattan Ry. Co., 101 N.Y. 661, 5 N.E. 66.)

John P. Gray, Frank McCarthy and Therrett Towles, for Respondent.

The city of Wallace is a municipal corporation organized under the general laws which granted to municipal corporations exclusive control over the streets, avenues and alleys within its corporate limits, and this court has expressly held such a municipal corporation liable for damages for its negligence in the leading case of Carson v. City of Genesee, 9 Idaho 244, 108 Am. St. 127, 74 P. 862 (See, also, Moroto v. Village of St. Anthony, 9 Idaho 532, 75 P. 262; Village of Sand-point v. Doyle, 11 Idaho 642, 83 P. 598; Eaton v. City of Weiser, 12 Idaho 544, 118 Am. St. 225, 86 P. 541; Powers v. Boise City, 22 Idaho 286, 125 P. 194; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; City of Denver v. Dunsmore, 7 Colo. 328, 3 P. 705.)

"The city is not absolved from liability for negligently permitting a dangerous awning to overhang the street, by the fact that the council has failed to pass an appropriate ordinance for the removal and abatement of nuisances, obstructions or encroachments upon the streets." (Bohen v. City of Waseca, 32 Minn. 176, 50 Am. Rep. 564, 19 N.W. 730; Leary v. City of Yonkers, 95 A.D. 126, 88 N.Y.S. 829.)

This duty is not confined entirely to obstructions upon the walk, but also applies as well to everything hanging over the walk that may render such travel unsafe. (Larson v. City of Grand Forks, 3 Dak. 307, 19 N.W. 414; Talbot v. City of Taunton, 140 Mass. 552, 5 N.E. 616.)

It is not necessary for the appellant to show that the city or any of the authorities of the city had actual notice of the obstruction. It was a question for the jury to say whether, under the circumstances of the case, the obstruction was of such a dangerous character and had remained in the position it was at the time of the injury to Mr. Baillie a sufficient time to put the city upon notice that the same was dangerous. (Powers v. Boise City, supra; James v. City of Seattle, 68 Wash. 359, 123 P. 472; Miller v. City of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107; Bailey v. City of Winston, 157 N.C. 252, 72 S.E. 966; Kunz v. City of Troy, 104 N.Y. 344, 58 Am. Rep. 508, 10 N.E. 442; Weed v. Village of Ballston Spa, 76 N.Y. 329, 330; Schroth v. City of Prescott, 68 Wis. 678, 32 N.W. 621; Fortin v. East Hampton, 145 Mass. 196, 13 N.E. 599; City of Covington v. Johnson, 24 Ky. Law Rep. 602, 69 S.W. 703; Larson v. City of Grand Forks, 3 Dak. 307, 19 N.W. 414; Dondono v. City of Indianapolis, 44 Ind.App. 366, 89 N.E. 421; City of Louisville v. Michels, 24 Ky. Law Rep. 1375, 71 S.W. 511; Manchester v. City of Hartford, 30 Conn. 118; City of Springfield v. Doyle, 76 Ill. 202; Schweickhart v. St. Louis, 2 Mo.App. 571; Dundas v. City of Lansing, 75 Mich. 499, 13 Am. St. 457, 42 N.W. 1011, 5 L. R. A. 144; Saulsburg v. City of Ithaca, 94 N.Y. 27, 46 Am. Rep. 122.)

If the defect is obvious and open to common observation, the municipality is charged with constructive notice of a defect in a highway. (Campbell v. City of Kalamazoo, 80 Mich. 655, 45 N.W. 652; City of Madison v. Baker, 103 Ind. 41, 2 N.E. 236; Bellamy v. City of Atlanta, 75 Ga. 167; City of Warsaw v. Dunlap, 112 Ind. 576, 11 N.E. 623, 14 N.E. 568.)

If the city did not have actual notice of the defect in the public way,--if, in the exercise of ordinary care it could have discovered the defect, it is liable. (Lyon v. City of...