Carson v. City of Genesee

• Decision Date: 12 December 1903
• Citation: Carson v. City of Genesee, 9 Idaho 244, 74 P. 862 (Idaho 1903)
• Parties: CARSON v. CITY OF GENESEE
• Court: Idaho Supreme Court

74 P. 862

9 Idaho 244

CARSON v. CITY OF GENESEE

Supreme Court of Idaho

December 12, 1903

CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY-MUNICIPAL CORPORATIONS-LIABILITY FOR DAMAGES-DEFECTIVE STREETS AND SIDEWALKS.

1.Where C. Knew that ten days or two weeks previous there was a broken board in the sidewalk, and passes over the same at nightfall, and receives injuries on account thereof, and testifies that she"didn't even think about those holes," and that she had not been over them for one or two weeks, and that she was walking along "just the same as anyone would walk up the street," held, that such facts did not, as a matter of law, establish contributory negligence, but were properly submitted to the jury, together with the other facts in the case.

2.Previous knowledge of a dangerous place in a street or sidewalk is not per se evidence of such negligence as will preclude a recovery, except in those cases where the known defect is so great as to prevent a reasonably cautious person from attempting to pass over such street or sidewalk in any usual manner.

3.Cities and villages incorporated under the general laws of Idaho, which grant to such municipal corporations exclusive control over their streets, avenues, lanes and alleys are liable in damages for a negligent discharge of the duty of keeping such streets and alleys in a reasonably safe condition for use by travelers in the usual modes.

4.Such liability exists in the absence of a specific statute imposing it.

5.Such liability results from the exclusive control granted over the streets, and the duty imposed to keep them in repair, and the power granted to raise adequate revenue therefor.

6.Davis v. Ada County, 5 Idaho 126, 95 Am.St.Rep. 166, 47 P 93, distinguished.

(Syllabus by the court.)

APPEAL from District Court in and for the County of Latah.Honorable E. C. Steele, Judge.

Action by plaintiff against the city of Genesee for damages sustained on account of personal injuries received from falling on a defective sidewalk within the corporate limits of the city.Judgment for plaintiff and defendant appeals.Affirmed.

Affirmed with costs.

Forney & Moore, for Appellant.

Nearly if not all, the authorities in the brief of appellant are cited in the opinion.

Stewart S. Denning, for Respondent.

Knowledge of a defect in a sidewalk by the person injured before he(or she) goes upon the same, or before the injury, does not per se establish negligence on his (or her) part.(Village of Clayton v. Brooks,150 Ill. 105, 37 N.E. 574;Samples v. City of Atlanta,95 Ga. 110, 22 S.E. 135;Sias v. Village of Reed City,103 Mich. 312, 61 N.W 502;McKeigue v. City of Janesville,68 Wis. 50, 31 N.W. 298;Kelley v. Town of Fond du Lac,31 Wis. 179;Nichols v. Town of Laurens,96 Iowa 388, 65 N.W. 335;Mayor etc. v. Holmes,39 Md. 243;Evans v. City of Utica,69 N.Y. 166, 25 Am. Rep. 165;Millcreek Tp. v. Perry(Pa.),12 A. 149;Monongahela Bridge Co. v. Bevard(Pa.),11 A. 575;Kelly v. Blackstone,147 Mass. 448, 9 Am. St. Rep. 730, 18 N.E. 217;Frost v. Waltham,12 Allen, 85;Jordan v. City of Seattle,26 Wash. 61, 66 P. 114;McQuillen v. City of Seattle,10 Wash. 464, 45 Am. St. Rep. 799, 38 P. 1119;Shearer v. Town of Buckley,31 Wash. 370, 72 P. 76;Maloy v. City of St. Paul,54 Minn. 398, 56 N.W. 94;Smith v. City of Spokane,16 Wash. 403, 47 P. 888;McLeod v. City of Spokane,26 Wash. 346, 67 P. 74.)Generally, the question of contributory negligence is for the jury to determine, from all the facts and circumstances of the particular case, and it is only in rare cases that the court is justified in withdrawing it from the jury.(Railroad Co. v. Stout,17 Wall. 657, 21 L.Ed. 745;Grand Trunk R. R. Co. v. Ives,144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485;Lowell v. Watertown Tp.,58 Mich. 568, 25 N.W. 517;Detroit etc. R. R. Co. v. Van Stienberg,17 Mich. 121;Maloy v. City of St. Paul,54 Minn. 398, 56 N.W. 94;Ladonceur v. Northern P. R. R. Co.,4 Wash. 38, 29 P. 942;City of Denver v. Solomon2 Colo. App. 534, 31 P. 507;Village of Clayton v. Brooks,150 Ill. 105, 37 N.E. 574;Roux v. Lumber Co.,85 Mich. 519, 24 Am. St. Rep. 102, 48 N.W. 1092, 13 L. R. A. 728;Cooley on Torts, 670, 671;Elliott on Roads and Streets, sec. 67, and notes.)"Knowledge of the unsafe condition of the streets, to be complete defense, must be present knowledge."(Smith v. City of Spokane,16 Wash. 403, 47 P. 888;City of Centralia v. Krouse,64 Ill. 19;City of Bloomington v. Chamberlain,104 Ill. 268;McLeod v. City of Spokane,26 Wash. 346, 67 P. 74;Drake v. City of Seattle,30 Wash. 81, 94 Am. St. Rep. 844, 70 P. 231.)"Momentary forgetfulness as to the condition of a sidewalk, over which a party is passing, is not necessarily conclusive proof of negligence in cases of this character."(Kelly v. Blackstone,147 Mass. 448, 9 Am. St. Rep. 730, 18 N.E. 217.)Though a person has knowledge that a highway or sidewalk is out of repair, or even dangerous, he is not, therefore, bound to forego travel upon such highway or walk.(City of Huntington v. Breen,77 Ind. 30;Wilson v. Trafalgar,83 Ind. 326;Wilson v. Trafalgar,93 Ind. 287;Nave v. Flack,90 Ind. 212, 46 Am. Rep. 205;City of South Bend v. Hardy,98 Ind. 586, 49 Am. Rep. 792;Town of Albion v. Hetrick,90 Ind. 546, 46 Am. Rep. 230;Turner v. Buchanan,82 Ind. 147, 42 Am. Rep. 485;Town of Gosport v. Evans,112 Ind. 133, 2 Am. St. Rep. 164, 13 N.E. 256.)"Where a city has exclusive control and management of its streets, with power to raise money for their construction and repair, a duty (when not expressly imposed by law or charter) arises to the public from the character of the powers granted to keep its streets in a reasonably safe condition for use in the ordinary modes of travel, and that it is liable to respond in damages to those injured by a neglect to perform such duty."(City of Denver v. Dunsmore,7 Colo. 328, 3 P. 705(leading case);Levy v. Salt Lake City,3 Utah 63, 1 P. 160;Snook v. City of Anaconda,26 Mont. 128, 66 P. 756(leading case);Farquar v. City of Roseburg,18 Or. 271, 17 Am. St. Rep. 732, 22 P. 110;Sutton v. City of Snohomish,11 Wash. 24, 48 Am. St. Rep. 847, 39 P. 273(leading case);Dillon on Municipal Corporations, 4th ed., sec. 999;Elliott on Roads and Streets, 2d ed., secs. 611, and notes, 746.)A grant of power carries with it authority to do those things necessary to the exercise of the power granted.(Wilson et al. v. Boise City, 6 Idaho 391, 55 P. 87.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.--

This action was commenced in the district court by the plaintiff against respondent to recover damages for personal injuries received while traveling over a defective sidewalk within the corporate limits of the appellant corporation.The appellantcity of Genesee, is a city of the second class, organized and existing under the general laws of this state.Plaintiff obtained a verdict and judgment.The city has appealed from the judgment and from an order denying it a new trial.

Both the briefs and oral arguments in the case have been entirely devoted to two assignments of error, and we will consider these points in the order in which they are discussed.

Appellant first contends that the court should have peremptorily instructed the jury to return a verdict for defendant, for the reason that the evidence shows the plaintiff guilty of contributory negligence.This contention is based upon the evidence of plaintiff wherein she testifies that she had "known this sidewalk to be in bad condition for a long time," and that she was passing over it in the night-time and "didn't even think about those holes. "She also testifies that she had not been over this defective walk for from one to two weeks previous to the time of the accident.It appears that she had been visiting a sick neighbor and had gone over another walk that afternoon, but being detained until about dark, went back across lots part of the way and came out onto this street, and after traveling for some distance came to the intersection of the walk along Spruce street with the walk on Walnut street, where a hole was broken in the board into which she stepped and fell and received injuries.She says she was walking along "just the same as anyone would walk up the street," and that she did not know that the holes were still there or that the walk was still out of repair.This walk, notwithstanding its condition, was in constant use by pedestrians going to and from their homes and places of business.It appears that the walk was in good repair on the other side of the street, and that the respondent could have reached her home over a sidewalk that was in safe condition.

The substance of appellant's contention on this point is: That for plaintiff to undertake to pass over this sidewalk with previous knowledge of the defect therein was per se contributory negligence, and that the trial court should have declared it so as a matter of law and taken the case from the jury.In support of this position appellant cites Hobert v. City of Seattle,32 Wash. 330, 73 P. 383;Rumpel v. O. S. L. & U. N. Ry. Co.,4 Idaho 13, 35 P. 700;City of Bedford v. Neal,143 Ind. 425, 41 N.E. 1029, 42 N.E. 815;City of Huntington v. Breen,77 Ind. 29;Town of Gosport v. Evans,112 Ind. 133, 2 Am. St. Rep. 164, 13 N.E. 256;City of Fort Wayne v. Breese,123 Ind. 581, 23 N.E. 1038;Cincinnati etc. Ry. Co. v. Howard,124 Ind. 280, 19 Am. St. Rep. 96, 24 N.E. 892, 8 L. R. A. 593.

In Hobart v. City of Seattle,the supreme court of Washington held that a general verdict in favor of plaintiff should have been set aside where the special findings of the jury showed that plaintiff, a woman, had crossed...