O'Brien v. City of St. Paul
| Decision Date | 15 December 1911 |
| Docket Number | 17,319 - (127) |
| Citation | 133 N.W. 981,116 Minn. 249 |
| Parties | MARGARET E. O'BRIEN v. CITY OF ST. PAUL |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $7,500 for personal injuries. The complaint, among other averments alleged that defendant city failed to keep that portion of the sidewalk on Robert street, particularly that part on the easterly side of that street more particularly described, in good repair or in safe condition for travel, but permitted the sidewalk at that point to become and remain in a dangerous and defective condition, and knew, or in the exercise of ordinary care, should have known of the dangerous, defective and unsafe condition of the sidewalk at that point; that accidents frequently happened at that point to persons walking on that sidewalk, the occurrence of which was well known to defendant, by persons slipping and falling in the manner in which plaintiff fell, by reason of stepping onto a smooth, glassy, slippery, worn, depressed and dangerously constructed part of the sidewalk. The answer admitted its existence as a municipal corporation, but denied all the other allegations of the complaint. The case was tried before Olin B. Lewis, J., and a jury which returned a verdict in favor of plaintiff for $900. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Statutory notice of accident -- description of locality.
A notice of an accident, required by the St. Paul city charter is in that respect sufficient if it so describes the place of the accident that the proper city officers can therefrom readily find and identify such place.
Slippery flagging -- evidence.
Upon the evidence in this case it cannot be held, as a matter of law, that a portion of a limestone flagging so worn by travel as to become smooth and slippery, and in this respect presenting a surface different from the surrounding surface of the walk, on which a pedestrian using due care slips by reason of its smoothness, is not a defect in a street for which a municipality is liable.
O. H. O'Neill, Kenneth G. Brill and Albin E. Bjorklund, for appellant.
Hollihan & Ryan, for respondent.
The plaintiff brought this action to recover for injuries received upon a claimed defective portion of a sidewalk in the city of St. Paul. Upon a trial the plaintiff had a verdict. The defendant appeals from an order denying its alternative motions for judgment or a new trial.
Under its assignments of error the defendant urges that it is entitled to judgment or a new trial upon one or all of the following grounds:
1. That the notice of the accident served on the defendant city was insufficient, in that it incorrectly designated the place of the accident.
In the notice the place of the accident was stated to be "the sidewalk on the easterly side of Robert Street, in front of No. 406 Robert street, and about one hundred forty-seven feet north of the northerly curb line of Sixth street." The evidence tended to show that the accident happened in front of 406 Robert street, and the notice in its reference to this number was therefore accurate. It appeared, however, that measuring exactly one hundred forty-seven feet north from the designated curb would locate the point of the accident five feet north of the north line of the store No. 406 Robert street, and about twenty feet from the place of the accident. The notice does not purport to give the exact distance from the curb to the point of accident. It stated "about" the distance.
Considering this stated distance in connection with the statement that the accident occurred in front of No. 406 Robert street, the notice is neither uncertain nor inaccurate. Precise and absolute certainty as to the exact point of an accident is not required in such a notice. Its purpose is served if it directs the proper authorities to the place of the accident, so that they may intelligently investigate and pass on any claims arising therefrom, and, if necessary, prepare for the defense in a suit. The notice given by the plaintiff complied with the charter requirement that a notice be given, stating "the place where" the accident happened.
2. It is urged that the evidence does not establish that the accident occurred at the claimed defective place in the walk. While the evidence for the plaintiff on this point is neither consistent nor very convincing, it is sufficient to sustain the finding of the jury.
3. Lastly, the defendant contends that the evidence does not establish a defective condition of the walk.
For a considerable distance on Robert street and around the corner of Sixth street, the sidewalk is constructed of limestone blocks or flagging. This stone has in its composition considerable shale, a soft material. When placed in a walk, or otherwise exposed to wear and the action of the elements, the shale quickly disintegrates and is worn away, leaving small undulations in the surface of the stone, and it appeared that this was the general character of the surface of the walk near the place of the accident.
The plaintiff's testimony tended to show that at the place of the accident one flagstone, while taken from the same quarry, presented a surface of a markedly different character; that because of an entire absence of shale in the surface of a part of this flagstone, it had none of the usual undulations; that this resulted in the surface being smooth, glossy, and very slippery; that for several years pedestrians had, at frequent intervals, fallen at this place; that this condition of the walk, and the frequent accidents happening thereon, were reported to the city authorities.
The plaintiff claimed from this evidence that it appeared that persons walking over the sidewalk were exposed to continual and unreasonable risk of injury because of the condition of this flag-stone, and its marked difference from the surrounding surface, and that the city, having had notice of its unsafe condition, was liable for the injuries to plaintiff caused thereby. The trial court adopted this view, and instructed the jury, if they found from the evidence "that by reason of the smooth, glossy, slippery condition of the stone at that point, produced by use and wear, the walk was dangerous, and a trap and menace for the use of pedestrians walking thereon in the exercise of ordinary care," that then they would find the sidewalk unsafe, and if the city, with notice, permitted the walk to remain in such unsafe condition, it would be liable for an injury resulting therefrom to the plaintiff without fault on her part. The further instruction was given that mere slipperiness of the walk, if caused by the presence of...
To continue reading
Request your trial