Berland v. City of Hailey

• Decision Date: 30 March 1940
• Docket Number: 6756
• Citation: 61 Idaho 333,101 P.2d 17
• Parties: OLAVA M. BERLAND, Respondent, v. CITY OF HAILEY, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

101 P.2d 17

61 Idaho 333

OLAVA M. BERLAND, Respondent, v. CITY OF HAILEY, a Municipal Corporation, Appellant

No. 6756

Supreme Court of Idaho

March 30, 1940

MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK-PERSONAL INJURY-ACTION FOR DAMAGES-NEGLIGENCE-EVIDENCE-QUESTIONS FOR JURY-INSTRUCTIONS.

1. In action for personal injuries caused by falling on an allegedly defective sidewalk, sustaining objection to question regarding whether witness considered place in sidewalk dangerous was proper, since question whether place was dangerous was ultimate fact to be found by jury.

2. In pedestrian's action for injuries sustained from falling on an allegedly defective sidewalk, permitting pedestrian to answer question asked by her counsel "Well, just what was it your foot struck?" was not error.

3. In pedestrian's action against city for injuries sustained from falling on an allegedly defective sidewalk, evidence that trees had extended their roots under sidewalk and raised sidewalk, that condition of sidewalk in 1921 was very much the same as it was at time of accident in June, 1938, and that trees had been removed about four years previously but that roots were not removed and sidewalk was not repaired was sufficient to justify jury in finding for pedestrian and justified denial of motions for nonsuit and directed verdict.

4. Under evidence that trees had extended their roots under sidewalk and raised sidewalk, that condition of sidewalk in 1921 was very much the same as it was at time of injuries to pedestrian in June, 1938, that about four years previously trees had been removed but that roots had not been removed and that sidewalk had not been repaired, even if city authorities had no actual notice of condition of sidewalk, its long existence would impart "constructive notice" to them.

5. A pedestrian is not required to keep his eyes on the sidewalk immediately in front of him all the time, and he may look at persons and objects and view the landscape as he walks.

6. A pedestrian may act as an ordinarily reasonable and prudent person would act under like circumstances, as regards right to recover for injuries sustained from fall caused by allegedly defective sidewalk.

7. Where semilatent danger caused by crack and upheaval in sidewalk could be readily observed if one were looking for such thing, but it would be easy for pedestrian to fail to observe such defect, in action by pedestrian for injuries sustained when she fell because of defect, whether pedestrian was guilty of contributory negligence and proximate cause of injuries was for jury.

8. The proximate cause of an injury is a question for the jury where there is any substantial conflict in the evidence or reasonable minds may fairly differ regarding conclusion to be reached.

9. Under the evidence that trees had extended their roots under and raised sidewalk, that condition of sidewalk in 1921 was much the same as it was at time of injuries to pedestrian in June, 1938, that about four years previously trees had been removed but that roots had not been removed, and that sidewalk had not been repaired, whether it was negligence on part of city to maintain sidewalk in condition it was when accident occurred was for jury.

10. In pedestrian's action for injuries sustained when she fell because of allegedly defective sidewalk, there was no material variance between allegations of complaint and proofs. (I. C. A., sec. 5-901.)

11. Failure to state a rule in its entirety, governing a particular phase of case, will not be deemed prejudicial if on the face of the whole body of instructions given the jury they are correctly advised as to the law governing the case.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. D. H. Sutphen, Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs in favor of respondent. Petition for rehearing denied.

J. G. Hedrick, J. J. McFadden and Sam S. Griffin, for Appellant.

A city is not an insurer of a safe condition, nor even of a reasonably safe condition of its sidewalks. Nor is it bound to keep or maintain sidewalks in a reasonably safe condition. Its duty is only to exercise reasonable care to keep or maintain sidewalks in a reasonably safe condition, and hence not only must there be a defect, but such defect must be of a degree that danger be reasonably apprehended therefrom to those using ordinary care in traversing the sidewalks, such danger must be known actually or constructively to proper city officials, not merely servants, and reasonable time and opportunity to repair thereafter elapse. (Draper v. Burley, 53 Idaho 530, 26 P.2d 128; Miller v. Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107; Ray v. Salt Lake City, 92 Utah 412, 69 P.2d 256, 119 A. L. R. 153; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456; Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789; Todd v. Hailey, 45 Idaho 175, 260 P. 1092; Powers v. Boise City, 22 Idaho 286, 125 P. 194; Hendrix v. Twin Falls, 54 Idaho 130, 29 P.2d 352; Baillie v. Wallace, 24 Idaho 706, 135 P. 850; Giffen v. Lewiston, 6 Idaho 231, 55 P. 545; Douglas v. Moscow, 50 Idaho 104, 294 P. 334; Denton v. Twin Falls, 54 Idaho 35, 28 P.2d 202; Hoffer v. Lewiston, 59 Idaho 538, 85 P.2d 238.)

Where details of appearance of and experience with defect in the sidewalk cannot be reproduced so that the jury may draw correct inferences an opinion as to its danger or safety is admissible in evidence. (22 Corpus Juris, pp. 554, 555; Miller v. Mullan, supra; Giffen v. Lewiston, supra; Denton v. Twin Falls, supra; Carson v. Genesee, 9 Idaho 244, 248, 74 P. 862, 108 Am. St. Rep. 127; Hoffer v. Lewiston, 59 Idaho 538, 541, 542, 85 P.2d 238.)

A. F. James, for Respondent.

Cities and villages are liable for negligent discharge of duty of keeping streets and alleys in a reasonably safe condition. (Goodman v. Village of McCammon, 42 Idaho 696 (1), 247 P. 789; Hendrix v. City of Twin Falls, 54 Idaho 130 (2), 29 P.2d 352; Draper v. City of Burley, 53 Idaho 530 (4), 26 P.2d 128; Douglas v. City of Moscow, 50 Idaho 104 (3), 294 P. 334.)

A municipality may not as a matter of law be relieved from liability for a defect where it is such that reasonably prudent men would anticipate that it might cause injury to some pedestrian exercising due care. (Douglas v. City of Moscow, 50 Idaho 104 (6) and at 108, 294 P. 334.)

Defendant's negligence need not be the sole cause of the injury to entitle plaintiff to recover. It is sufficient if his negligence was a proximate cause of the injury. (Miller v. Gooding Highway Dist., 55 Idaho 258, 41 P.2d 625.)

Where evidence on material facts is conflicting, or where on undisputed facts reasonable and fair-minded men may differ as to inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, question of negligence is one of fact to be submitted to jury. (Call v. City of Burley, 57 Idaho 58 (2), 62 P.2d 101; Bennett v. Deaton, 57 Idaho 752 (9), 68 P.2d 895; same rule applicable to contributory negligence, Bennett v. Deaton, 57 Idaho 752 (10), 68 P.2d 895.)

AILSHIE, C. J. Budge, Morgan and Holden, JJ., concur, Givens, J., concurs in the conclusion.

OPINION

AILSHIE, C. J.

Respondent Berland instituted this action against appellant City of Hailey, for damages caused by falling on a defective sidewalk. Miss Berland, a graduate nurse 61 years of age at the time of the injury, had been employed by Dr. Fox at "hospital nursing," for a period of six or seven years at least; she was his "star surgical nurse." She had "never been ill a day" and "never off a day." Her usual route to work was from J. C. Fox's direct to the hospital in the City of Hailey. June 8, 1938, about 6:30 P. M., on her way to night duty, respondent was walking south on the west side of First Avenue. She had gone that way on an errand to visit a friend; the walk was not familiar to her. As she approached the intersection, ready to turn west, she, "all of a sudden" fell face forward, full length; there was "some irregularity there," her foot struck the edge of the block, and she "was down on the lower block without a moment's notice." Later testimony of a contractor in the city disclosed by actual measurements that the "raise" on the sidewalk at this place "slopes gradually from the east to the west, . . . . two and seven-eights inches on the east end and one and three-fourths on the west side." It was brought out by other testimony that there was a drop in the sidewalk in 1921, "very much the same" as it is now. Cottonwood trees had extended their roots under the walk; the tree had been taken out, "about four years ago," but the roots were not removed and the walk was not repaired.

In falling, respondent received a fracture of her right hip; both bones of the left wrist were broken, and she suffered bruises and contusions on other parts of her body. She remained at the hospital for three and one-half months, afterward using crutches most of the winter. At the time of the trial she had no control over most of the fingers on her left hand. Dr. Fox testified that the injury to respondent's arm is a permanent injury; that she will be unable to do general and surgical nursing. From a judgment awarding respondent the sum of $ 5,864.70 against appellant city, and from the order denying motion for a new trial, defendant appeals.

The first specification of error is directed against the action of the court in sustaining objections to certain questions calling for opinion of witnesses as to whether they "would consider that a dangerous place in the sidewalk" and, "Will you state in your opinion whether that is dangerous?" The action of the...