Chambers v. City and County of Honolulu

• Decision Date: 07 October 1965
• Docket Number: No. 4388,4388
• Citation: 48 Haw. 539,406 P.2d 380
• Parties: Earlene CHAMBERS v. The CITY AND COUNTY OF HONOLULU, a Municipal Corporation, v. Bernice MIYASATO.
• Court: Hawaii Supreme Court

Page 380

406 P.2d 380

48 Haw. 539

Earlene CHAMBERS v. The CITY AND COUNTY OF HONOLULU, a Municipal Corporation, v. Bernice MIYASATO.

No. 4388.

Supreme Court of Hawai'i.

Oct. 7, 1965.

Syllabus by the Court

1. On a motion for a directed verdict, the evidence and the inferences which may be fairly drawn therefrom must be considered in the light most favorable to the party against whom the motion is directed, and if the evidence and the inferences so viewed are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue submitted to the jury.

2. Refusal to give instructions which are inapplicable to the facts and not responsive to the evidence is not error.

3. The abutting landowner is not liable for pedestrian's injuries resulting from a fall because of a depression in a road shoulder used as a sidewalk, where there is no evidence that the landowner made any alterations to the road shoulder for the special use or benefit, and when the road shoulder was used not only as a driveway for the abutting landowner's customers but also by the motoring public on the adjacent boulevard as a place to stop, park, or turn around.

4. Findings of the trial court will not be set aside unless 'clearly erroneous.' H.R.C.P., Rule 52(a).

David H. C. Lee, Deputy Corp. Counsel and Stanley Y. F. Ling, Corp. Counsel and Raymond J. Tam, Deputy Corp. Counsel, Honolulu, for appellant.

Yoshio Shigezawa and Walter G. Chuck, Honolulu, for third-party defendant-appellee.

Harriet Bouslog, Honolulu, for plaintiff-appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

MIZUHA, Justice.

On October 31, 1958, at or about 7:00 P.M., plaintiff-appellee Earlene Chambers, while walking on the road shoulder on the mauka (north) side of Kapiolani Boulevard on which the Donald Duck Drive Inn at 2840 Kapiolani Boulevard fronts, fell and injured herself because of a depression or hole in the pavement.

The plaintiff filed suit on September 29, 1959, against the defendant-appellant, City and County of Honolulu, which in turn filed a third-party complaint against the third-party defendant-appellee, the owner of Donald Duck Drive Inn, Bernice Miyasato. Plaintiff did not seek any relief from the third-party defendant. At the conclusion of the trial, appellant submitted the factual issues as to negligence and liability of the third-party defendant to the trial court along with the issues of law. Plaintiff's claim against defendant-appellant went to the jury, which returned a verdict for the plaintiff-appellee against the defendant-appellant in the sum of $15,000 in special and general damages. The trial court subsequently ruled in favor of the third-party defendant against the third-party plaintiff. Judgment in favor of plaintiff and third-party defendant was entered May 25, 1962, from which the defendant-appellant appeals.

Plaintiff-appellee admits that she knew of the defects in the road shoulder, having lived in the area for four months prior to the accident at an apartment located at 2832 Kapiolani Boulevard adjacent to the drive-inn. On the particular evening when The road shoulder abutting the Donald Duck Drive Inn is owned by the defendant-appellant, the City and County of Honolulu, and about 50 to 100 vehicles use the road shoulder daily either as an ingress and egress to and from the drive-inn or to stop and turn around.

plaintiff fell, she was unable to see the area under her feet as she walked since the lighting was not very good. She testified that 'it is the only place to walk, so that is where I was walking to mail a letter.' She was wearing black low-heeled sandals with a strap, and had stopped wearing high heels because of the holes in this area.

PART I

Appellant contends that the trial court erred in denying its motion for a directed verdict on the ground that the appellee was guilty of contributory negligence as a matter of law.

The record indicates that the question of contributory negligence arises from a set of facts from which reasonable men might draw different conclusions or inferences. The basis for determining whether there was sufficient evidence to submit the issue of contributory negligence to the jury is set out in Young v. Price, 47 Haw. 309, 313, 388 P.2d 203, 206; Young v. Price, 48 Haw. 22, 24, 395 P.2d 365, 367, as follows: '[O]n motions for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue should be submitted to the jury.'

Plaintiff's testimony was to the effect that despite the fact that she took the necessary precautions on account of the holes in the area, she fell because the holes blended with the black top surface and the inadequate lighting made it impossible to see all of them at night. This was an urban area. There was no other place to walk. The contention that a verdict shoud have been directed is not based on any theory that, as a matter of law, it was imprudent for a pedestrian to attempt to pass this way at night. We cannot say that reasonable persons in the exercise of fair and impartial judgment may not reach different conclusions as to whether this plaintiff exercised the care which a reasonably prudent person would exercise under the circumstances. Martin v. Gilmore, 358 S.W.2d 462, 466-467 (Mo.App.1962). Where 'reasonable men might differ on the facts or the inferences which may be reasonably drawn from the facts, the question of negligence is left to the jury under proper instructions, * * *.' Carreira v. Territory, 40 Haw. 513, 517. This is equally true where contributory negligence is the issue. Young v. Price, supra; Ferrage v. Honolulu R. I. & L. Co., 24 Haw. 87, 91. The trial court did not err in its refusal to direct a verdict in defendant's favor.

Appellant's third specification of error reads:

'3. The Trial Court erred in refusing over objection Appellant's instructions 27, 28, ¹ 29, 30, 31, 32, 33 and 48. (Trial Record pp. 249, 250). Said instructions state in essence that an abutting landowner who makes special use of a sidewalk for his own benefit, owes a duty of due care to maintain the area in a reasonably safe condition for pedestrians travelling over the area.'

This specification of error does not properly present any matter for consideration and disposition by this court. It violates Rule 3(b)(4) of the rules of this court which requires that the specification shall set out the part referred to totidem verbis together with the objections urged at the Furthermore, we question whether the abutting owner's liability was of any significance in relation to the question submitted to the jury, which concerned solely the defendant-appellant's liability to plaintiff. In any event, we have reviewed the instructions and find they are inapplicable to the facts and not responsive to the evidence herein. They are incomplete, and ambiguous, and would have confused and misled the jury. Collins v. Shishido, 48 Haw. 411, 405 P.2d 323, rehearing denied 48 Haw. 538, 405 P.2d 338. (See discussion on court's findings and 'special use doctrine' in Part II of this opinion.)

trial. Kealoha v. Tanaka, 45 Haw. 457, 463, 370 P.2d 468, 472; You Goo Ho v. Dr. Edmund T. K. Ing, 43 Haw. 330, 332.

PART II

As to the third-party defendant, appellant specifies as error the trial court's findings of fact, conclusions of law and judgment that she was not negligent in the maintenance and care of the road shoulder fronting her business.

Appellant argues that the road shoulder took the place of a sidewalk and was being used by third-party defendant as an entrance to the drive-inn as well as a parking place for her patrons. This, it is contended, constituted a special use making the abutting owner liable for any injuries sustained from defects of the road shoulder, citing, among other, Hughes v. City of New York, Sup., 236 N.Y.S.2d 446; Wylie v. City of New York, 286 App.Div. 720, 146 N.Y.S.2d 207; Prange v. McLaughlin, 115 N.J.L. 116, 178 A. 782. The cases relied on by the appellant where the defect was caused by special use are distinguishable on the facts. Failure to properly maintain specially constructed driveways, or permitting trucks to drive over a sidewalk not designed for such purpose, formed the basis of a finding of negligence in the foregoing cases.

In the absence of a statute or ordinance, the owner or occupant of land abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public a duty to keep the sidewalk in a safe condition. Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569, 88 A.L.R.2d 326; Sexton v. Brooks, 39 Cal.2d 153, 245 P.2d 496; Major v. Fraser, 78 Nev. 14, 368 P.2d 369; City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160. See Re Taxes Victoria Ward, 33 Haw. 235.

But an abutting owner of property may be liable for injuries to users of the sidewalk resulting from a defective or dangerous condition thereof which is created by or arises from his own acts or conduct constituting negligence or a misuse under the circumstances. Barker v. Kroger, Grocery & Baking Co., 7 Cir., 107 F.2d 530, cert. denied, 309 U.S. 656, 60 S.Ct. 471, 84 L.Ed. 1005; Belk-Mathews Co. v. Thompson, 94 Ga.App. 331, 94 S.E.2d 516; Clair v. City of Kansas City, 180 Kan. 409, 304 P.2d 468; Smith v. City of Corning, New York, 14 App.Div.2d 27, 217 N.Y.S.2d 149; Rollins v. Satterfield, 254 S.W.2d 925 (Ky.1953).

Where a sidewalk is specially constructed for the benefit of the abutting property or serves a use independent of...