City and County of Denver v. Magivney

• Decision Date: 06 July 1908
• Citation: 96 P. 1002,44 Colo. 157
• Parties: CITY AND COUNTY OF DENVER v. MAGIVNEY.
• Court: Colorado Supreme Court

96 P. 1002

44 Colo. 157

CITY AND COUNTY OF DENVER v. MAGIVNEY.

Supreme Court of Colorado

July 6, 1908

Appeal from District Court, City and County of Denver; John I Mullins, Judge.

Action by Adelaide F. Magivney against the city and county of Denver. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by appellee against appellant and the Denver Union Water Company to recover damages for injuries suffered through the negligence of defendants. A defective sidewalk on Fifteenth street, between Curtis and Arapahoe, in the city of Denver, was the cause. The width of the sidewalk at the point where the accident took place as originally constructed proved insufficient for the convenience of the public because of the city's largely increased population. Hence afterwards, and a short time prior to the accident, the city itself, through it board of public works extended the sidewalk 27 or 28 inches into the street constructing such addition thereto by the use of cement. Before such enlargement of the sidewalk, and probably several years--the date is not definitely fixed--defendant, the Union Water Company, had placed at this point what is called a 'water box'; that is, a small iron cylinder about 3 1/2 inches in diameter of sufficient depth to receive a service pipe at the bottom, which, in turn, connected with the water main of said company and also with a pipe or pipes leading into the adjacent building. This cylinder or box contained a contrivance called a stopcock, by means of which the water could be turned on or cut off from the building. The top of the water box was ordinarily covered by a metal cap about three-fourths of an inch in thickness, so constructed as to fit over the same. This metal cap, which in the present instance should have been cylindrical in form projected a little beyond the rim of the box throughout its entire circumference; and, when the same was properly in place, the upper side thereof was intended to be flush with the upper surface of the sidewalk. The water box was originally placed adjacent to the curb; but, upon the widening of the sidewalk, it was left 27 or 28 inches inside of the curb, and in such a position as to be constantly under the feet of pedestrians passing to and fro. The cement addition to the sidewalk was so constructed by the city that its surface was three inches above the rim of the water box so that, even with the cap or cover in place, there would have been a hole upwards of two inches in depth. This resulted in two serious conditions, viz., in the first place, such a depression in the sidewalk was a constant menace and danger to people using the same; in the second place, it interfered seriously with the proper use of the water box itself. The cap or cover of this box was connected with a bolt extending downward inside and along the edge of the cylinder through a small projecting iron ring, a lug attached to the bottom of the bolt so that the cap could not be removed, but, when unscrewed, it could be lifted just enough to clear the surface of the sidewalk and revolve, leaving an opening for insertion of the key and manipulation of the stopcock; but, with the surface of the cover two inches below the sidewalk, manifestly this could not be done. At the date of the accident no cap was in place nor had one been in place for a considerable period prior thereto. The cylinder or water box was therefore uncovered and open. Just how long it had been so uncovered does not appear; but it was filled with débris to within one inch of the top. Thus a depression or hole was made in the sidewalk about seven inches in diameter at the top, five inches wide at the bottom, and three inches in depth. Plaintiff in passing along the sidewalk about seven o'clock in the evening inadvertently stepped into this hole, and was thrown violently to the ground, suffering the injuries complained of. There was at this point no barrier, light, or signal or other indication of danger to apprise people of the hole or depression and thus prevent accidents. The action was brought against the Denver Union Water Company, as well as against appellant, but upon the trial and at the close of the evidence the jury were instructed to find for the water company. They, however, returned a verdict against the city for $2,000, upon which the judgment under review was entered.

Two of the instructions given at the request of appellant and considered in the opinion are as follows:

'(4) The court instructs the jury, that you should find for the defendant the city of Denver unless you believe from the evidence that the city of Denver negligently constructed and maintained the sidewalk in question or caused the removal of the top or cap from the water box below said sidewalk, or had notice of the existence of its removal either actual or constructive for such a length of time as would have enabled the defendant the city of Denver to have repaired it.

'(5) The court instructs the jury that if the plaintiff fails to show notice to the city of Denver, either actual or constructive, of the defective condition of said sidewalk at the point where the accident occurred, for such time prior to the accident as to have enabled said defendant to have repaired the defect, your verdict should be for defendant.'

H. A. Lindsley, C. R. Brock, and S.W. Belford, for appellant.

Richardson & Hawkins and W. H. Davis, for appellee.

HELM, J. (after stating the facts as above).

It is hardly necessary to say that by law the duty is devolved upon the city of Denver to exercise ordinary care in preventing the sidewalks from becoming defective and dangerous to pedestrians; also, that a failure by the municipality so to do will, under proper circumstances, render it liable for injuries suffered through such defects. Nor need we dwell upon the following additional legal propositions, viz.: When a defect in the sidewalk causing accident and injury was the result of the city's own negligent act, a primary liability against the city attaches therefrom. But, when such defective condition of the sidewalk...