Bieber v. City of St. Paul

• Decision Date: 27 June 1902
• Docket Number: Nos. 13,066-(74).,s. 13,066-(74).
• Parties: ESTHER BIEBER v. CITY OF ST. PAUL.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

87 Minn. 35

ESTHER BIEBER v. CITY OF ST. PAUL.¹

Nos. 13,066-(74).

Supreme Court of Minnesota.

June 27, 1902.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., denying a motion for judgment notwithstanding the verdict or for a new trial. Affirmed.

James E. Markham, Franklin H. Griggs and Thomas McDermott, for appellant.

Samuel A. Anderson, for respondent.

LOVELY, J.

Action to recover for injuries sustained from a fall upon an alleged defective sidewalk in the city of St. Paul. At the close of the evidence defendant requested an instructed verdict in its favor, which was refused. After verdict for plaintiff, defendant moved for judgment, or for a new trial in the alternative, which was denied. This appeal is from an order refusing a new trial.

The undisputed facts may be stated as follows: Near the hour of eleven o'clock on the morning of May 26, 1900, plaintiff was walking upon the sidewalk on the west side of Wabasha, between Seventh and Ninth streets, which was at that place very extensively used by pedestrians. As plaintiff approached the entrance to a provision store she observed a fish in the window, which she desired to purchase. She turned to enter, and attempted to go in. To do so it was necessary to pass over an elevated stone step raised somewhat above the sidewalk to the level of the store. The walk along the entire front of the store was constructed of hexagonal cement blocks. Some of these, through the operation of the frost, had become depressed, and were sunken below their original level, particularly one at the entrance of the building, which was six inches from the step. It had fallen below the general surface of the walk at its outer side an inch and a quarter, while at the inner side to a less extent. The evidence shows that in going into the store plaintiff placed her right foot upon the step, and in transferring her weight thereto inadvertently put her left foot on the imperfect and depressed portion of the walk at the same instant, when it tripped and turned. She slipped by this mischance, and fell upon the sidewalk, receiving serious injuries to her ankle, with consequent illness and pain, for which she had a verdict. It was conceded upon the argument that the evidence tended to show that this imperfect condition of the walk had continued for a sufficient length of time to establish notice thereof to the city, and, if there was a defect which the municipality, in the exercise of its duty to maintain reasonably safe and suitable sidewalks for use, should have repaired, the order appealed from must be affirmed.

In this state, where a municipality having charge of the repairs of its walks permits a sidewalk designed for the use of pedestrians to continue and be thus used, it is its duty to exercise reasonable care to maintain it in a suitable state for use, and is liable to persons injured from defects therein, where the city has actual or constructive notice thereof. Furnell v. City of St. Paul, 20 Minn. 101 (117); Graham v. City of Albert Lea, 48 Minn. 201, 50 N. W. 1108. Defendant insists, however, that as a matter of law the depression of the hexagonal block where the accident occurred of only an inch and a quarter below the surface of the walk was not such a defect as required attention and repair by the city, and hence that it was not wanting in ordinary care for its failure in that respect.

Obviously, the degree of care to be exercised by a municipality in maintaining suitable walks for pedestrians on its public thorough-fares is to be tested by the rule applicable in other cases where the obligation is imposed to provide structural conditions for the benefit of those required or privileged to use the same. The degree of duty in such cases is to be measured by the liability of accident, and should be commensurate with the risks and dangers incurred. While we might not hold that a depression of a stone in a walk of only an inch and a quarter below its ordinary level at all places would require attention and repair by the city, or that the municipality would be liable in damages for permitting such a depression to continue after notice, where the probability of accident would not be apparent to those having charge of the duty to remedy the...