City of Phoenix v. Clem

• Decision Date: 26 May 1925
• Docket Number: Civil 2224
• Citation: 28 Ariz. 315,237 P. 168
• Parties: CITY OF PHOENIX, a Municipal Corporation, Appellant, v. JESSIE CLEM, Appellee
• Court: Arizona Supreme Court

237 P. 168

28 Ariz. 315

CITY OF PHOENIX, a Municipal Corporation, Appellant, v. JESSIE CLEM, Appellee

Civil No. 2224

Supreme Court of Arizona

May 26, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded with instructions to dismiss complaint.

Mr. W L. Barnum, Mr. E. J. Flanigan, and Mr. J. E. Nelson, for Appellant.

Messrs Jennings & Strouse, for Appellee.

OPINION

ROSS, J.

Jessie Clem, appellee, brought this action against the city of Phoenix, for damages for personal injuries, alleging that on January 2, 1922, while the defendant was constructing a water-main at the intersection of Ninth Avenue and Washington Street "a portion of the trench . . . was . . . left . . . in an uncovered condition, leaving a large hole in said street, and that said city . . . failed and refused to provide or to station a light at said hole, or to give notice of danger to the public and to vehicles passing along said street, of the said uncovered ditch or trench," and that, while she was traveling in an automobile along Washington Street at Ninth Avenue, at about 8 o'clock in the evening, the machine struck said hole so left unguarded and uncovered, whereby she was injured, etc.

Defendant for answer pleaded (1) the general issue; (2) that plaintiff had in another action for the same tort recovered judgment for $12,000 against the White Line Taxi, Inc., which judgment had been settled and satisfied; and (3) that, prior to January 2, 1922, the defendant city had caused to be dug a ditch along West Washington Street, from Seventh Avenue to Ninth Avenue, for the purpose of laying city water-mains therein; that on or about December 13, 1921, said ditch had been back-filled with dirt taken therefrom, in a proper and workmanlike manner, and with due regard for the safety of the travelers on said street; that the street along said work, on the night of January 2d, was properly guarded by warning lights, and that, if the driver of car in which plaintiff was riding had used ordinary care and caution plaintiff would have sustained no injury; that said excavation very shortly prior to the time when plaintiff sustained injuries was level with the remainder of the street and open to, and had been used by, the public for public travel in the ordinary modes, and was safe for such use; that, due to a heavy fall of rain previous to the alleged injury, said excavation had settled a few inches, but not so far as to become unsafe for public travel by any person using due care and caution in traveling over or upon the same; that the ditch or excavation was fully filled in a proper and safe manner, and defendant had no notice from any source that the fill had settled or that there was any depression of any kind on said avenue or street.

The case was tried to a jury, and resulted in a verdict and judgment for $5,000. Defendant appeals.

There is no dispute about the evidence, but there is a dispute as to what, if anything, it proves or establishes. The errors assigned are based upon the court's refusal to instruct a verdict for defendant at the close of the whole case, and upon a refusal of certain instructions, and it therefore becomes necessary to state briefly the evidence.

The early part of December, 1921, the city, for the purpose of laying therein water-mains caused to be dug, by an independent contractor, a trench about forty-two inches wide and about four feet and four inches deep, along the north side of West Washington Street, between a point beginning about twenty-six feet west of the intersection of Ninth Avenue and Washington Street and extending to Seventh Avenue. After the mains were placed in trench, it was filled and back-filled with the earth taken therefrom, and the portion of the street occupied by it reopened to traffic about December 15th. The manner of refilling was the usual and customary one, and consisted of putting in earth within a foot of surface and then back-settling with water. After it was back-settled, or puddled, it was protected by barriers until the earth dried out, and then fully filled up and rounded over trench, in accordance with specifications. The trench was between the street railway track, located near the center of street, and the north curb and in that portion of the street used by the traveling public. After street was opened to traffic it was watched closely to see that it was in condition, and if any holes appeared the city employees filled them up. The city engineer went over the part of the street where accident happened that evening (but he does not say how late), and states "the condition of the surface of the street at the point where pavement had been cut was good on the night of January 2d." The employees of the city in charge of the improvement knew that a trench filled and back-filled as this one was, when subjected to heavy rains, was apt to sink below the surrounding and adjacent pavement.

About 8 o'clock in the evening, the plaintiff took a taxi at Third Avenue and Washington Street to go to her home on Hadley Street, and went west on Washington, traveling on the north side of street out of Seventh Avenue, where, because a light indicated some work on that side of street, it went to the south side, and proceeded on the south side to the intersection of Ninth Avenue, where it recrossed to the north side, and, in the words of plaintiff, after machine had crossed the street railway track, "ran into a hole in the pavement, and I was hurt." The following morning, at 7 o'clock, "the dirt in the excavation had sunk from six inches to eight inches below the pavement" and there was "one automobile track in the hole." It had been raining for two days prior to the accident. The time and fact was fixed by witnesses because on January 3d, or the day following the accident, there was another "Cave Creek flood."

The defendant insists the court erred in refusing to grant its motion for an instructed verdict upon the following three grounds: (a) Because the evidence failed to establish plaintiff had suffered injury by automobile coming in contact with the hole in trench; (b) because it appeared from the testimony of plaintiff that she was injured by the jolting of automobile on street railway track; and (c) because "the testimony is uncontroverted to the effect that the defendant had made the place in question reasonably safe for public travel for some time prior to the injury to plaintiff, and that it had no notice of such defect at any time prior to such occurrence, and certainly not in time to have repaired the same."

Covering points (a) and (b), we will say the evidence was not as full and complete as it might be. Indeed, it was very meager, consisting of the statement of plaintiff that she was hurt by machine running into hole in trench, and the corroborative telltale tracks of the machine found in hole early the following morning. The jury were satisfied that plaintiff was hurt at the place claimed, and we think they had enough evidence before them to support such finding. Every circumstance points to its correctness. Defendant rather ingeniously argues that, passed over street railway track, it was then she was hurt, but the jury evidently thought otherwise, and a fair construction of her whole testimony on that point sustains the conclusion that the injury was due to the automobile coming in contact with the hole in trench. Where there is competent evidence reasonably tending to support the verdict, and especially where the trial court has overruled the motion for a new trial, the rule is not to disturb the verdict. Southwest Hay & Grain Co. v. Sherer, 21 Ariz. 166, 185 P. 820; Southern Pacific Co. v. Thomas, 21 Ariz. 355, 188 P. 268; Durazo v. Ayers, 21 Ariz. 373, 188 P. 868.

The next point (c) is not so easily disposed of. It involves defendant's right to notice of defect. The trial court adopted the theory of plaintiff, that the defect was of such a character as to imply notice, and this theory of the law the city combated below and is combating here.

The acts of negligence charged against defendant are (1) that it left a portion of the trench in an uncovered condition, leaving a large hole in street; and (2) it failed and refused to provide light at said hole, or to give notice of danger to the public or vehicles of the uncovered trench.

It must be conceded that the city not only had the right, but owed the duty, to make needed improvements of its water and sewer systems and to that end could itself, or through others lawfully enter upon its streets and do all things necessary to accomplish that purpose. The defendant was therefore acting within its rights when it caused the trench to be made and the water-mains to be laid therein. While such improvement was being made, the city owed a duty of placing barriers, signs, or lights around, over, and near the excavation as a warning to the public of danger, and a failure to do so would constitute actionable negligence. Pine Bluff Natural Gas Co. v. Senyard, 108 Ark. 229, 25 A.L.R. 419, and note, 158 S.W. 1091. The negligence charged in complaint did not occur in the progress of the improvement, but after the trench had been filled and back-filled and rounded over in the usual way. It is not negligence in doing this work that is charged against defendant, nor is there any testimony that it was not done in a reasonably safe and workmanlike manner. The charge is that defendant left a large hole in trench, unprotected by a light or any notice of danger. The uncontradicted evidence is that the portion of Washington Street in which trench was made had been opened up to the public and used by travelers for some fifteen or more days before the accident occurred,...