Butland v. City of Caldwell
| Citation | 6 P.2d 493,51 Idaho 483 |
| Decision Date | 22 December 1931 |
| Docket Number | 5743 |
| Parties | L. H. BUTLAND, Respondent, v. CITY OF CALDWELL, Appellant |
| Court | Idaho Supreme Court |
MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK-PERSONAL INJURY-ACTION FOR DAMAGES - PLEADING - CONTRIBUTORY NEGLIGENCE - CHANCE VERDICT.
1. Court properly refused to strike allegation that offset in sidewalk was obstruction and nuisance and dangerous to travelers thereon as sham, irrelevant, redundant, and mere conclusion of pleader.
2. Every obstruction in sidewalk is nuisance.
3. Allegation that allegedly defective sidewalk upon which plaintiff fell had been constructed by virtue of resolution passed by city council held sufficient, although failing to indicate particular resolution.
4. Description in complaint of alleged defective construction of sidewalk, allegedly causing plaintiff's fall and injury held sufficient.
5. Allegation that plaintiff's knee was lacerated and kneecap bruised, causing loss of joint water, sufficiently showed nature of injury, although not specifying knee injured.
6. Action based upon negligent construction and maintenance of sidewalk held not subject to motion to require separate statement of causes of action (C. S., sec. 6688).
7. Statute requiring separate statement of causes of action applies only to causes which, operating independently of each other, are responsible for entire injury (C. S., sec. 6688).
8. Standing alone, instruction that if plaintiff knew of defect in sidewalk, etc., allegedly causing his fall, would be erroneous as assuming existence of defect.
9. Instruction must be considered together with other instructions on same subject.
10. Whether previous knowledge of defect in sidewalk precludes recovery for fall caused thereby depends on particular case.
11. Person exercising ordinary care is not contributorily negligent because of temporary forgetfulness of or inattention to known danger.
12. Instruction that previous knowledge of defect in sidewalk causing plaintiff's fall was not per se contributory negligence, followed by instruction holding plaintiff to higher degree of care if infirm or of defective eyesight, held sufficiently favorable to city sued for damages from fall.
13. Quotient verdict accepted after discussion thereof, and not agreed to in advance, was not chance verdict.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.
Action by L. H. Butland against the City of Caldwell to recover damages for personal injuries caused by defendant's negligence. Judgment for plaintiff. Affirmed.
Judgment affirmed; costs to respondent.
Stewart Maxey and S. Ben Dunlap, for Appellant.
One who knows of defects or obstructions in a street must use reasonable care to avoid them, and that care must increase in proportion to his knowledge of the risk. (Wheat v. St Louis, 179 Mo. 572, 78 S.W. 790, 64 L. R. A. 292; Knight v. Kansas City, 138 Mo.App. 153, 119 S.W. 990; Stoliker v. Boston, 204 Mass. 522, 90 N.E. 927.)
One who is infirm in any way must take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions than other persons not infirm, in order to reach the standard of ordinary care established by the law for all persons alike, whether weak or strong, sound or deficient. (Keith v. Worcester & B. & V. St. R. Co., 196 Mass. 478, 82 N.E. 680, 14 L. R. A., N. S., 648.)
A municipality is not liable for injuries caused by defective streets in absence of actual or constructive notice of defect. (Goodman v. Village of McCammon, 42 Idaho 696, 697, 247 P. 789.)
A quotient verdict obtained by the addition of the several amounts to which each juror thinks the party is entitled and the division of the sum by twelve is a chance verdict and should be set aside. (Flood v. McClure, 3 Idaho 587, 32 P. 254; Beakley v. Optimist Printing Co., 28 Idaho 67, 152 P. 212.)
W. A. Stone and H. E. Wallace, for Respondent.
Causes of action separately stated: Fox v. Rogers, 6 Idaho 710, 59 P. 538; Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110, 48 L. R. A., N. S., 119, cited by the appellant are not in point, and in Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789, the question was neither considered nor decided by the supreme court.
We know separate causes of action should be separately stated, but in case at bar we have but one cause of action and that is negligence on the part of the defendant, continued negligence; and continued negligence cannot be separated and divided into two causes of action and the damage caused by each separately stated any more than mental and physical pain and suffering can be separated and amount of damage for each specifically stated. Mental pain and suffering are inseparable. (13 Cyc. 245.)
Plaintiff is presumed to have used due care. (C. S., sec. 6721.) One can notice water running along a sidewalk without being negligent in his traveling upon the walk. He knew of the obstruction for several years, but had forgotten it temporarily at the time of accident. But temporary in-attention to or forgetfulness of a known defect or obstruction does not constitute contributory negligence. (28 Cyc. 1425, note 41, also pp. 1422 and 1512, sec. C, note 27; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545.)
Plaintiff and respondent, L. H. Butland, brought this action against defendant and appellant, City of Caldwell, to recover $ 10,742 damages for personal injuries, loss of time and expense alleged to have been suffered by him as a result of his fall upon a public, concrete sidewalk in said city, caused by the city's alleged negligence and carelessness in constructing and maintaining said walk. The issues joined were defective construction, continued maintenance thereof and contributory negligence. Butland was awarded a verdict for $ 650. Motion for new trial was denied and, from the incident order and preceding judgment, the city has appealed.
Respondent plaintiff had plead that defendant had "constructed said sidewalk in such a careless and negligent way and manner as to allow a joint in said walk to separate and the edge of one block of said sidewalk, the full width thereof to raise about three inches above the adjoining block of said walk making an abrupt offset of about three inches the width of said walk, which was an obstruction and a nuisance and dangerous to travelers thereon." Appellant moved to strike the clause, "which was an obstruction and a nuisance, and dangerous to travelers thereon," designating it as sham, irrelevant, redundant and a mere conclusion of the pleader. Sham and irrelevant, it obviously was not. Nor was it redundant: any obstruction is a nuisance: not every nuisance however, is an obstruction. Description of the detailed condition of the sidewalk, if true, did not involve a conclusion but a statement of patent fact: there was no error in denying the motion.
The general demurrer interposed by appellant city was properly overruled. It is insisted that the court erred in overruling the special demurrer arraigning the complaint as ambiguous, unintelligible and uncertain. Without specific reference, respondent plead that the walk had been constructed "by virtue of a resolution passed by the city council." His description of the alleged defect has already been detailed. The result of his alleged mishap due to the fall was described as injuries "to one of his limbs," consisting of "the laceration of plaintiff's knee and bruising of plaintiff's knee-cap so as to cause the loss of joint water from his knee etc." From such pleading, appellant claims it was unable to ascertain what particular resolution was adverted to, in what manner plaintiff claimed the walk to have been defectively constructed or which of plaintiff's knees was concerned, all of such knowledge being essential to a proper preparation of its defenses.
That the particular resolution was not indicated, we think immaterial. Appellant was directly charged with having negligently constructed the sidewalk, the condition complained of having been especially set out. Whether or not such construction was in fact regularly authorized does not affect the city's ultimate liability. Nor do we think there could have been any confusion over the condition described as defective. Careful pleading would have required respondent to designate which knee suffered injury but the failure so to do worked appellant no...
To continue reading
Request your trial