City of Pueblo v. Smith

• Decision Date: 06 July 1914
• Docket Number: 7653.
• Citation: 57 Colo. 500,143 P. 281
• Court: Colorado Supreme Court
• Parties: CITY OF PUEBLO v. SMITH.

143 P. 281

57 Colo. 500

CITY OF PUEBLO v. SMITH.

No. 7653.

Supreme Court of Colorado

July 6, 1914

Rehearing Denied Oct. 5, 1914.

Error to District Court, Pueblo County; Hon. J. E. Rizer, Judge.

Action by Hugh M. Smith against the City of Pueblo. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

A. W. Arrington, of Pueblo, for plaintiff in error.

M. J Galligan, of Pueblo, for defendant in error.

GARRIGUES J.

Plaintiff Hugh M. Smith, a mail carrier in Pueblo, was returning to the post office on a bicycle, after his usual delivery of mail. Upon crossing Union avenue viaduct, a general thoroughfare of the city, his wheel struck an obstruction in the floor, he fell and was injured, and for the injury sustained, he recovered judgment against the city for $5,000. It brings the case here for review.

1. There is no material dispute over the facts affecting the merits of the case. Union avenue, upon which there is constructed a viaduct about 400 feet in length and 32 feet wide, is one of the principal streets of Pueblo. In the latter part of 1909, it became necessary to refloor this viaduct, which was done with what is commonly termed three-inch plank, which varied somewhat in thickness. These planks were laid lengthwise on the bridge, and this difference in thickness caused an unevenness in the floor where they came together, varying in some places, according to witnesses who measured the difference, from a quarter to three-quarters of an inch. The street car tracks cross this viaduct, and at the time of the accident, plaintiff was riding his bicycle between the rails on one of the tracks. Hearing a car coming behind him, he attempted to ride off the track, and, striking one of the raised edges of the plank, fell and was injured. At the close of plaintiff's evidence, defendant asked the court to direct a verdict for the city, which motion was denied, and the error assigned on this ruling is the only one we will consider.

2. The question presented is, Was it negligence on the part of the city to plank the viaduct in such a manner as to leave it in an uneven condition, and whether or not, under the undisputed facts, the court should, as a matter of law, have determined this question in favor of the city.

The general rule applicable to this subject is that cities shall construct and maintain the streets, under whatever circumstances may arise, in a reasonably safe condition for ordinary travel by those using in a proper manner that particular part of the highway. Under no conditions can a municipal corporation be regarded as an insurer of the safety of those using the streets. Abbott on Municipal Corporations § 1024; Boulder v. Niles, 9 Colo. 415, 12 P. 632; Denver v Moewes, 15 Colo.App. 28, 60 P. 986; Beltz v. City of Yonkers, 148 N.Y. 67, 42 N.E. 401; Kelchner v. Nanticoke Boro., 209 Pa. 412, 58 A. 851.

3. As a rule, the existence of negligence is a question of fact for the jury; but it is otherwise when the facts are not in dispute, or where the negligence or its absence is evident and unquestionable. C. C. R. R. Co. v. Holmes, 5 Colo. 205; Jackson v. Crilly, 16 Colo. 107, 26 P. 331; C., B. & Q. R. R. Co. v. McGraw, 22 Colo. 366, 45 P. 383; Colo. & Southern Co. v. Reynolds, 51 Colo. 231, 116 P. 1043; Mau v. Morse, 3 Colo.App. 362, 33 P. 283; Cemetery Ass'n v. Davis, 4 Colo.App. 572, 36 P. 911; Thompson Co. v. Phillips, 22 Colo.App. 440, 125 P. 563.

It seems to us that the...