City of St. Paul v. Hyslop

• Decision Date: 18 November 1909
• Docket Number: 3,105.
• Parties: CITY OF ST. PAUL v. HYSLOP.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F. 391

CITY OF ST. PAUL v. HYSLOP.

No. 3,105.

United States Court of Appeals, Eighth Circuit.

November 18, 1909

J. C Michael, C. E. Collett, and Morton Barrows, for plaintiff in error.

William H. Hallam and Anderson & Ekern, for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WM. H. MUNGER District Judge.

WM. H MUNGER, District Judge.

On October 1, 1907, about 7:30 o'clock in the evening plaintiff was walking near the middle of the sidewalk on Fourth street, one of the principal business streets in the city of St. Paul. When in front of the Union Building a portion of the stone sidewalk gave way and precipitated him to the bottom of an excavation underneath the sidewalk, from which fall he sustained the injuries complained of. It had been raining, and the evening was quite dark, at the time of the injury. The sidewalk consisted of stone flagging originally about four inches in thickness; said flagging resting upon, and supported by, iron rails. The walk was about ten feet in width and the excavation underneath about eight feet in depth. The stone flagging of the walk had been in place many years. The thickness of the stone near the center of the walk had been reduced about an inch by reason of the travel thereon. The walk, at the point where the injury occurred, was in front of a building which had been occupied for a number of years by a publishing house, and the paper which it used in the conduct of its business had been unloaded in large crates upon the walk in question. For some months previous to the date of the injury the stone flagging of the walk had been broken and exhibited cracks from a quarter to a half inch in width. The testimony showed that some persons accustomed to travel to and from their places of business daily over this walk guardedly avoided the center and passed along the walk nearer the edge thereof. One of the witnesses stated that some three weeks prior to the accident, when walking along the walk at the point in question with a friend he 'caught a crack' (as he expressed it), which he estimated was from a quarter to a half inch in width, running in a somewhat circular shape.

On the night in question plaintiff was passing along the walk when a portion of the stone flagging, in something of a triangular shape, about four feet long, three feet wide at one end and one foot at the other, gave way and precipitated plaintiff to the bottom of the areaway underneath, causing the injuries complained of, and to recover damages for which this action was brought. Plaintiff, a citizen of Wisconsin, was not an entire stranger in St. Paul, but testified that he did not think he had ever traveled over this walk before, though he might have done so.

The evidence does not show actual knowledge by the city...