City of Pueblo v. Smith

• Decision Date: 12 June 1893
• Citation: 33 P. 685,3 Colo.App. 386
• Court: Colorado Court of Appeals
• Parties: CITY OF PUEBLO v. SMITH.

33 P. 685

3 Colo.App. 386

CITY OF PUEBLO v. SMITH.

Court of Appeals of Colorado

June 12, 1893

Appeal from district court, Pueblo county;

Action by J.H.C. Smith against the city of Pueblo. Judgment for plaintiff. Defendant appeals. Affirmed.

M.G Saunders, for appellant.

Hartman & Glenn, for appellee.

THOMSON J.

This was an action brought by J.H.C. Smith against the city of Pueblo, a municipal corporation, organized under the laws of the state of Colorado, to recover damages on account of injuries received by him while driving in one of its public streets in consequence of coming in contact with a large post set in the street, and protruding a considerable distance above the surface of the ground. The testimony of the plaintiff is that about half past 7 o'clock in the evening of October 3 1889, and after it was dark, he was driving along this street, when suddenly the buggy in which he was driving encountered a post and was upset, throwing him to the ground and severely injuring him. He says that he was driving at a moderate gait,--probably at the rate of a mile in seven or eight minutes; that he might have been going at a rate of ten or twelve miles an hour, but that his speed was "a moderate jog of a trot, such as ladies drive;" and that he had never seen the post, and did not know of its existence. The evidence for plaintiff is that the post was solidly set in the ground, was about twenty-seven inches high, and had been there for about two years before the accident; and, although another portion of the street was most generally used for travel, yet that portion was also traveled, and used by the public for the passage of vehicles. Defendant introduced an ordinance of the city of Pueblo which provides that any person who shall ride or drive any horse, mule, or other animal in or through any street within the city at a rate faster than six miles an hour shall be guilty of a misdemeanor, and upon conviction shall be fined in a sum not less than $3 and not more than $100.

The giving of instructions numbered 1, 2, 4, and 8 by the court upon its own motion, and the refusal of an instruction requested by defendant, are assigned for error. In the argument the discussion is confined to the fourth and eighth instructions and the instruction refused. It seems to have been conceded that, if there was such an obstruction as is alleged, defendant was chargeable with notice of its existence, because the instruction declaring the law upon that question was not objected to. The first and second instructions submitted to the jury the question of defendant's negligence, and correctly state what may be considered in estimating the damages. They are unobjectionable, so far as we can see, and we presume were so regarded by defendant's counsel, as he gives them no attention in his argument. Instructions 4 and 8 are as follows: "No. 4. The court instructs the jury that it was the duty of the defendant, the city of Pueblo, to keep and maintain its streets free from obstructions artificially placed in the streets which would be dangerous to persons traveling upon the streets. Whatever rule of law might be applicable to public streets in the city that had not yet been formally accepted and opened for public use, or in the less frequented portions of the city in the outskirts of the same, the city might be said to have performed its duty if it provided a safe and convenient traveling way, sufficiently wide for the accommodation of the public, and guarded against danger from the natural or artificial obstructions therein. But the court instructs the jury that in such portions of the city as are frequently traveled, and are liable to be traveled, and where the city has accepted the street and graded the same, it is the duty to keep the same free from obstructions to the extent and for the entire width of that portion of the street between the gutters which by its natural conformation is apparently set apart for public travel." "No. 8. The court further instructs the jury, that, while the answer does not allege contributory negligence as a defense, yet, if they find from the evidence of the plaintiff himself that the injury was occasioned by reason of his driving at a careless, negligent and high rate of speed, and that such act upon his part was the cause of the injury, and that he would not have suffered the same had he been driving at an ordinary and prudent rate of speed upon the public highway, he would be guilty of contributory negligence, and could not recover; and it is a question of fact for you to determine from the evidence, without regard to any rate of speed fixed by the city ordinances, as to what rate of speed in fact would be negligent." The following is the instruction refused: "No. 1. If the jury believe from the evidence, at the time alleged in the complaint, and at the time the injury complained of is alleged to have occurred, plaintiff was violating an ordinance of the...