Baker v. City of South St. Paul
| Decision Date | 11 December 1936 |
| Docket Number | No. 31007.,31007. |
| Citation | 270 N.W. 154,198 Minn. 437 |
| Parties | BAKER v. CITY OF SOUTH ST. PAUL. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Dakota County; W. A. Schultz, Judge.
Action by Mildred E. Baker against City of South St. Paul. Verdict for plaintiff and, from an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appeals.
Reversed and new trial granted.
Walter T. Ryan, of St. Paul, for appellant.
Phillips & Lindmeier, of Lake City, and Grannis & Grannis, of South St. Paul, for respondent.
Defendant appeals from an order denying its motion for judgment notwithstanding the verdict, or, if that be denied, then for a new trial. Plaintiff had a verdict for $5,000.
Seventh avenue south in the city of South St. Paul runs north and south. Third street runs east and west. The two streets intersect at right angles. In the center of the intersection is a manhole some 18 feet deep. There is a trunk line sewer running east and west along the center line of Third street, entering and running out of this manhole at the bottom thereof. This trunk sewer takes up and carries away sewage and storm water coming into the manhole from the other sewer lines to be mentioned, and carries the sewage and storm water on east to some outlet. There is what is called a lateral sewer running north and south along the center of Seventh avenue, entering this manhole about 14 feet below the street surface. This lateral sewer carries sewage from the dwellings and buildings along Seventh avenue and also carries rain and surface water from catch basin lines along this street. At the southeast and southwest corners of the intersection of Seventh avenue and Third street, at the curb or gutter, are catch basins to take the surface water from rain and snow coming into the street gutters from the streets and surrounding property in that vicinity. From these catch basins there are tile line sewers some 6 feet below the street surface, running to and entering the manhole at the center of the intersection at that depth. Briefly stated, the situation at this manhole and street intersection was as follows: There was a trunk sewer entering the manhole 17 or 18 feet below the surface of the street; there was a lateral sewer on Seventh avenue, entering the manhole about 14 feet below the street surface; and there were two tile lines from the catch basins, entering the manhole about 6 feet below the street surface.
On June 30, 1935, in the evening and up to 9 o'clock or a little after, there were heavy showers, with a precipitation of an inch or more of water in the area of South St. Paul. The plaintiff here, riding in a Ford automobile driven by one Wayne Evans, was traveling from St. Paul to South St. Paul during this rain. They were going to the home of plaintiff's sister, located on Seventh avenue south in South St. Paul, a short distance south of the intersection with Third street, which is the intersection hereinbefore described. They reached South St. Paul just about the time the rain ceased, and approached this intersection driving south on Seventh avenue. When near the intersection, the driver, Mr. Evans, saw a hole or opening in the street at the intersection. He thought it was an open manhole and that he could straddle it with his car. When the front wheels of the car came to the hole, earth around it caved in and the front part of the car dropped into the opening up to the top of the radiator. The rear wheels of the car remained on top of the ground. Evans was driving at a slow speed at the time. Both he and the plaintiff got out of the car without assistance. So far as appears, neither of them suffered any visible or appreciable physical injuries to the body or the organs of the body. Plaintiff walked from the place of the accident to her sister's home. She apparently was suffering from shock caused by the accident. Her prior history has some bearing on her subsequent condition. From about January 1 to April 1, 1935, she had been nervous, losing some weight, and suffering from a goiter. On April 1, the goiter was removed by an operation. She gradually regained health and apparently had recovered at the time of the accident. Immediately after the accident, she became very nervous. Shortly after she arrived at her sister's home, she became hysterical and was then taken to a hospital for a few days. She has not fully recovered and continued to be nervous and to have hysterical attacks at intervals up to the time of trial.
Plaintiff seeks by this action to recover damages for the shock sustained and the subsequent condition resulting to her therefrom.
The evidence shows that the hole in the street, which resulted in the accident, was caused by a break in the lateral sewer about 14 feet below the surface of the street. This break in the sewer tile was some 3 or 4 feet south of the manhole. It had caused the sandy soil above the tile to be washed out by the water coming out of the tile and to be carried away by the sewer. The void or hole created had extended upward to the surface. After the earth caved in by weight of the car, the hole at the top was some 7 or 8 feet in diameter. It was close to the manhole and on the south side thereof, practically in the center of Seventh avenue and near the center of the intersection. There is no evidence that this break in the sewer or this hole existed at any time prior to the heavy rainfall on the evening of June 30, which caused a large volume of water to rush through the sewer. There is nothing to show that defendant had any actual notice or knowledge of the break in this sewer until after the accident. There is uncontradicted evidence that this washing out of the soil above the sewer tile could happen in 15 to 20 minutes when there was a large volume of water coming into the sewer tile, causing heavy pressure on the tile.
Plaintiff seeks to charge the city with notice of the defective condition of the sewer a sufficient time before the accident by claiming that there was a break in this same sewer at this same place, in other words, a break in the same tile line at the same place, in the latter part of May of the same year, and that defendant either failed to repair the break or else did not properly repair it at that time, and hence was charged with notice of the defective condition of this sewer from that time on.
It is undisputed that, in the latter part of May, a hole opened in this intersection when a truck driven over the intersection caused the ground to cave in and leave a hole some 4 or 5 feet in diameter. The truck did not fall into the excavation, but there was a thump or jar felt as the cave-in started. Except for some evidence by three witnesses on the part of plaintiff, that the hole in the street surface on June 30 was practically in the same place, or, as one of them said, exactly in the same place, as the hole caused by the cave-in in May, which evidence will be later herein considered, there is nothing to impeach the testimony of the city engineer, the foreman of the street repair work, and one other man, who worked in making the repair after each break. These three witnesses for the defendant testified clearly and positively that the break in the latter part of May was in the tile line from the catch...
To continue reading
Request your trial