Bohen v. City of Waseca
| Decision Date | 11 June 1884 |
| Parties | James Bohen v. City of Waseca |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Waseca county, Buckham, J., presiding, overruling a general demurrer to the complaint.
The complaint alleges (among other things) the incorporation of defendant on February 23, 1881; that by its charter it has the care, supervision and control of its streets, and authority to remove all obstructions and encroachments therein; that on Second street, the principal business street of the city, the defendant constructed and suffered to be constructed sidewalks through the business portion of the city, which have been generally and for ten years in public use; that on and long prior to January 20, 1883, there had been attached to a certain described building on Second street, a wooden awning which overhung the sidewalk. That this awning was fastened to the building by the nailing of the awning frame and timbers to the building, and was further supported by four braces extending from the awning to the side of the building, which were nailed to the awning and the building, without being mortised, or otherwise permanently fastened. That this mode of construction was negligent and unsafe, and that long before January 20, 1883, the braces and supports had become rotten, etc., and that the defendant had long had full knowledge of the condition of the awning, and its liability to fall, but negligently suffered it to remain in its dangerous condition.
The complaint further alleges that on January 20, 1883, while the plaintiff was lawfully walking on the sidewalk beneath it the awning, by reason of its defective condition, fell upon him and inflicted the injuries for which he seeks to recover.
The complaint states a cause of action, and the order overruling defendant's demurrer is accordingly affirmed.
C. K Davis, for appellant.
The defendant is given by its charter "authority, by ordinance, * * to remove and abate every nuisance obstruction or encroachment upon the streets." This gives a discretionary power of a legislative character, and does not impose on the city the duty (imposed by charter on St. Paul and some other cities) of keeping its streets free from nuisances. The city could not remove this awning except by an ordinance, general or special, and the complaint does not allege that any ordinance on the subject was ever passed. The charter of Winona considered in Fox v. City of Winona, 23 Minn. 10, was like that of this defendant but in that case the city had passed an ordinance.
The liability of a city for injuries from defects in streets is such only as the legislature imposes, (Nichols v. City of Minneapolis, 30 Minn. 545,) and it is not liable for the non-exercise of, or for the manner in which it in good faith exercises, discretionary powers of a public or legislative character. 2 Dillon, Mun. Corp. § 949.
The doctrine in respect to falling awnings "is limited and peculiar, if not exceptional." Id. § 1004. The awning in this case hung over the sidewalk, being attached to the adjacent building, which was private property, and not, as in Fox v. City of Winona, 23 Minn. 10, supported by posts in the street. In such circumstances the city is not liable. Hixon v. City of Lowell, 13 Gray 59; Jones v. City of Boston, 104 Mass. 75; Hewison v. City of New Haven, 34 Conn. 136. Both these last cases follow Hixon v. City of Lowell, in preference to Drake v. City of Lowell, 13 Met. 292. And see 2 Dillon, Mun. Corp. § 1013, note 2; Beardsley v. City of Hartford, 23 Am. Law Reg. (N. S.) 117.
Collester Bros. and Lewis & Leslie, for respondent.
The charter of the city of Waseca (Sp. Laws 1881, c. 47,) provides, in section 5 of subchapter 6, that "the common council of said city shall have the care, supervision, and control of all the highways, bridges, streets and alleys, and public grounds, within the limits of the city." Section 4, subchapter 5, constitutes the city one road-district; section 1 of the same subchapter confers upon the common council power to levy taxes to raise a general fund for city purposes, and to expend any portion of the same for the improvement of the streets of the city; and section 5 empowers the council to assess and levy highway labor and taxes, and to direct the street commissioner when, where, and how to expend such labor and taxes. As respects their effect upon the liability of the defendant city, these provisions are substantially the same as those of the charter of the city of Minneapolis, considered in Shartle v. City of Minneapolis, 17 Minn. 284, (308,) and held to confer upon such city the exclusive care and control of its streets, and to provide it with means for that purpose. It was said in that case by Mr. Justice McMillan to be "well settled that a municipal corporation having the exclusive control of the streets and bridges within its limits, at least, if the means for performing the duty are provided or placed at its disposal, is obliged to keep them in a safe condition, and, if it unreasonably neglects this duty, and injury results to any person by this neglect, the corporation is liable for the damage sustained." The same doctrine was applied to the case of a sidewalk in Moore v. City of Minneapolis, 19 Minn. 258, (300.) These two cases are in point in the case at bar, and they show that it is the...
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