City of Knoxville v. Baker

• Decision Date: 14 December 1940
• Docket Number: 2.
• Citation: 150 S.W.2d 224,25 Tenn.App. 36
• Parties: CITY OF KNOXVILLE v. BAKER.
• Court: Tennessee Court of Appeals

150 S.W.2d 224

25 Tenn.App. 36

CITY OF KNOXVILLE v. BAKER.

No. 2.

Court of Appeals of Tennessee, Eastern Section.

December 14, 1940

Certiorari Denied by Supreme Court April 5, 1941.

Appeal in Error from Circuit Court, Knox County; Hon. Hamilton S Burnett, Judge.

Action by Billie D. Baker, by next friend, against the City of Knoxville for personal injuries resulting from tripping over a water cutoff near edge of sidewalk. From a judgment for plaintiff, the defendant appeals in error.

Judgment reversed and action dismissed.

Frantz McConnell & Seymour and Hartman, Lockwood & Carson, all of Knoxville, for plaintiff in error.

Donaldson Montgomery & Baugh, of Knoxville, for defendant in error.

McAMIS Judge.

Plaintiff below, Billie D. Baker, aged seven years, suing by next friend, instituted this suit against the City of Knoxville to recover for alleged personal injuries sustained as the result of plaintiff tripping over a water cutoff located from eighteen inches to twenty-one inches from the edge of the sidewalk along North Central Avenue.

At the conclusion of plaintiff's proof in chief, the City of Knoxville moved the court for a directed verdict in its favor. This motion was overruled. The City declined to introduce any proof and the case was submitted to the jury with the result that a verdict for $1,000 was returned. Its motion for a new trial having been overruled, the City has appealed in error to this court, assigning as the first ground for reversal the action of the trial court in overruling its motion for a directed verdict.

There is little, if any, dispute in the evidence. On January 14, 1939, between the hours of 8 and 9 P. M., plaintiff was returning home with his two older brothers. The three boys had been walking north on North Central Avenue on a sidewalk five or six feet in width maintained by the defendant. Shortly before reaching 1300 North Central Avenue, two other pedestrians came between plaintiff and his two brothers, and plaintiff, in order to catch up, left the sidewalk and went upon the premises of one Creech located at 1300 North Central Avenue.

There is evidence that a City street light was located seventy-three feet from the water cutoff located on the Creech premises but, from the evidence most favorable to plaintiff, it appears that the cutoff was not visible in the darkness caused by the shadow of a tree intervening between it and the street light. Plaintiff tripped over the handle, which consisted of a steel rod about one-half inch in diameter extending eighteen inches above ground with a handle about six inches in length parallel to the ground. The City official in charge of the Water Department testified that when the water was turned on the handle was supposed to point away from the sidewalk and toward the Creech house and that when the water was turned off the handle was supposed to be parallel with the sidewalk. We, therefore, assume that, at the time in question, the handle was pointing either toward the Creech house or was parallel with the sidewalk.

It appears without dispute that the cutoff was installed during the year 1910 by the City for a fee of $10 which was charged to the property owner. It appears that the cutoff in question was for the exclusive benefit of the property owner, the City having its meter and cutoff located between the sidewalk and street curb. The proof is undisputed that since the installation of the cutoff the City has not assumed any right of control over it and has made no repairs upon it.

It is the theory of the declaration that the City was guilty of a nuisance in thus permitting an obstruction to exist near the sidewalk in the position shown even though located without the boundaries of the street and sidewalk and upon private property. On behalf of the City it is contended that its duty of keeping the street and sidewalk clear of obstructions extended only to the limits of the street "as made and used"; that it was under no duty to go upon private premises and remove the water cutoff or erect a barrier along the side of the walk to prevent persons from straying off the sidewalk and into a place of danger.

The rule in this State, as stated at an early date, is as follows:

"We think the true rule may be stated to be, that if an obstruction or excavation be permitted which renders the alley, street, or highway, unsafe or dangerous to persons or vehicles,--whether it lie immediately in or on the alley, street, or highway, or so near it as to produce the danger to the passer at any time when he shall properly desire to use such highway,--it is such a nuisance as renders the corporation liable. ***

"A party bound to keep a highway in repair and open for the passage of the public in a city by night or by day, certainly cannot be held to perform that duty by simply keeping the area of the highway free, while along its edge there is a well or excavation uninclosed, into which the passer, by an inadvertent step, or an accidental stumble, might fall at any time." Niblett v. Nashville, 59 Tenn. 684, 12 Heisk. 684, 686-689, 27 Am.Rep. 755. (Italics ours.)

In Oliver v. Nashville, 106 Tenn. 273, 61 S.W. 89, the court said that if a traveler intentionally or as a matter of choice or convenience leaves the usual and safe place of travel he cannot hold the city liable if he heedlessly goes into a place of danger. Recovery was denied in that case but evidently more upon the theory of gross contributory negligence upon the part of the injured traveler than upon a holding that the city was under no obligation to maintain in a safe condition the place along the street where the injury occurred.

In City of Clarksville v. Deason, 9 Tenn.App. 274, opinion by Judge DeWitt, Niblett v. Nashville, supra, was cited for the controlling principles involved, and it was held that the duty of the municipal corporation should not be restricted to the limit of the sidewalk where there was no mark distinguishing the edge of the right-of-way from private property, it appearing that the covering over a coal hole located upon private property but used as a part of the sidewalk was constructed of unsafe material and that this condition was known to the city. It was pointed out that the duty of the city, under such circumstances, extends to the point of affording reasonable protection to travelers whom it has permitted to assume that the property so used is public property.

Thus while it was held in Niblett v. Nashville, supra, that a...