Bieber v. City of Newcastle

• Decision Date: 28 May 1965
• Docket Number: Civ. No. 4781.
• Citation: 242 F. Supp. 457
• Parties: H. L. BIEBER, Plaintiff, v. CITY OF NEWCASTLE, a municipal corporation, Louis W. Carlson, James T. Fletcher and Faye Bessey, Defendants.
• Court: U.S. District Court — District of Wyoming

242 F. Supp. 457

H. L. BIEBER, Plaintiff, v. CITY OF NEWCASTLE, a municipal corporation, Louis W. Carlson, James T. Fletcher and Faye Bessey, Defendants.

Civ. No. 4781.

United States District Court D. Wyoming.

May 28, 1965.

J. F. Mahoney, of Mahoney & Murphy, Casper, Wyo., and Ken C. Graves, of Graves & Lehnert, Rapid City, S. D., for plaintiff.

Edward E. Murane, of Murane, Bostwick, McDaniel & Scott, Casper, Wyo., for defendant City of Newcastle.

KERR, District Judge.

Plaintiff, a citizen of the state of South Dakota, brought this action to recover damages for injuries allegedly suffered from the negligence of the city of Newcastle, Wyoming, a first class city, its mayor and city engineer, and against the owner of the property contiguous to the defective sidewalk. The case was tried to the Court, with a jury. Two verdicts were returned, the jury finding in favor of Faye Bessey, the owner of the contiguous property, and against the city of Newcastle and in favor of plaintiff, exonerating the mayor and city engineer. Damages were assessed at the sum of $5,000.00. Prior motions for summary judgments were overruled. The matter now before this Court is the oral motion of defendant city of Newcastle for judgment notwithstanding the verdict.

Defendant city of Newcastle made no attempt to claim immunity from plaintiff's suit. It is defendant's contention that liability can not attach to the city of Newcastle when, regardless of actual or constructive knowledge of the defective sidewalk, it did not have the written notice as required by Sec. 15-28, Wyoming Statutes, 1957.

In Wyoming, the municipal corporation owes a duty to the traveling public to keep its streets and sidewalks in a reasonably safe condition and in reasonably good repair for the traveling public. Quest v. Town of Upton, 36 Wyo. 1, 252 P. 506 (1926); Town of Cody v. Soth, 36 Wyo. 66, 252 P. 1021 (1927). The essence of plaintiff's complaint is that the city of Newcastle, negligently, wrongfully and knowingly permitted a dangerous condition to exist upon the public sidewalk, which negligence occasioned plaintiff's injuries and damages. The hole into which plaintiff fell was located partly on the public sidewalk and partly on the property of Faye Bessey. It measured 3.3 feet east and west, and 1.11 feet north and south and was approximately 9 feet deep. It had been there for years, resulting from the razing of an old hotel. Faye Bessey and her brother knew it was there and attempted to keep it covered, though it was not covered on the night of the accident. Plaintiff was a visitor to the city and did not know that the sidewalk was in a defective condition and did not see the hole before falling into it.

Plaintiff's theory is one of nonfeasance, that is, of failure on the part of the city to keep the sidewalk in good repair. The authorities agree that where the defects or causes of injuries are not traceable to a positive act of the municipality or of those for whose conduct it is liable, but are due to its failure to inspect and ascertain the existence of defects not caused by its own active negligence, then it must have notice, actual or constructive, of the defects, and must have had a reasonable time and opportunity to remove the defects. Hanks et ux. v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278 (1932), citing White on Municipal Negligence, Secs. 225 and 460, and McQuillen on Municipal Corporations, 2d Ed., Vol. 7, Sec. 2996.

The right of action against a municipal corporation "is a matter of legislative favor and may be withheld, granted absolutely, or granted on condition". 64 C.J.S. Municipal Corporations § 2186, Page 1029. Throughout extensive legislative revisions of the statutes relating to cities and towns, the Wyoming legislature has preserved the conditional liability of cities of the first class as provided in Section 15-28, Wyoming Statutes 1957. This statute was read to the jury:

"Cities of the first class shall be absolutely exempt from liability for damages or injuries suffered or sustained by reason of defective public ways or the sidewalks thereof within the limits of such cities, unless actual notice in writing of the defect of such public way or sidewalk shall have been filed with the city clerk at least five days before the occurrence of such injury or damage. In the absence of such notice, so filed, the city shall not be liable, and in all cases such notice shall describe with particularity the place and nature of the defects of which complaint is made." (Emphasis supplied.)

Plaintiff complied with the requirements of Section 15-29, Wyoming Statutes 1957, providing that no suit shall be instituted against a first class city for any claim whatever unless it shall first have been presented to the city council. That section, therefore, is not in issue, but is mentioned briefly to show its relation to Section 15-28, Wyoming Statutes 1957, in the legislative scheme of municipal liability and suits against cities of the first class. Sections 15-28 and 15-29 were originally enacted by Chapter 51, Session Laws of Wyoming 1909, Sections 49 and 51, respectively. In 1915 and 1931, Sections 52 through 76 of said Act were repealed. In 1961 the legislature made a general revision of the laws relating to cities and towns, and repealed the balance of Chapter 51, Session Laws of Wyoming 1909, with the exception of seven sections, two of which were Sections 15-28 and 15-29. The comprehensive revisions in the 1965 Municipal Code, to be effective July 1, 1965, made only minor grammatical amendments in the former Sections 15-28 and 15-29.

The only reference to Section 15-28, Wyoming Statutes 1957, by the Wyoming Supreme Court has been in the case of Opitz v. Town of Newcastle, 35 Wyo. 358, 249 P. 799 (1926), at which time Newcastle was not a first class city. The Court followed the long established and recognized rule that the town was liable for negligence in failing to use reasonable care in keeping its streets in reasonably safe condition for public travel, and in safeguarding, by proper danger signals, the places of danger thereon. The Supreme Court commented that the legislature seemed to have given recognition to such rule of liability by never having repudiated it and by having limited it with reference to first class cities by the enactment of what is now Section 15-28. At page 363, 249 P. at page 800, the Wyoming Supreme Court said:

"It would seem that the legislature, by the enactment of this section, recognized the necessity of affirmative legislation in order to limit the liability of municipalities, in case of negligence in maintaining its streets."

This Court accedes to the reasoning of the Wyoming Supreme Court that Section 15-28, Wyoming Statutes 1957, limits the liability of first class cities for damages or injuries suffered or sustained by reason of defective public ways or sidewalks within the limits of such cities. That statute is clear and unambiguous, and if it is applicable to the case at bar, it is a good defense and the city of Newcastle is exempt from liability for damages suffered by the plaintiff for the reason that written notice was not filed with the city clerk at least five days prior to plaintiff's accident.

The question, therefore, to be decided is whether Section 15-28, Wyoming Statutes 1957, is applicable to the facts in the case at bar.

There is reliable authority for the rule that even though actual notice is required by the statute as a condition of municipal liability, such notice is nevertheless "not necessary when the defective condition is due to the direct act of the municipality or of those acting by its authority * * *." 63 C.J.S. Municipal Corporations § 825, P. 164. At the trial of this case, the evidence disclosed that the hole in the sidewalk on account of which plaintiff was injured, was not created or caused by an act of the city, nor in the course of work authorized by a city permit. Therefore, the cases dispensing with the statutory requirement of written notice where the defective condition was created by the city are not controlling in the case at bar.

In the case of Rox et al. v. Village of Great Neck et al., 25 Misc.2d 848, 214 N.Y.S.2d 213, District Court, Nassau County, 1959, the statute required a written notice as does the Wyoming law, and no notice was given. The contractor was engaged by the city to excavate and refill a certain portion of the street....