City of Wabasha v. Southworth

• Decision Date: 29 June 1893
• Citation: 55 N.W. 818,54 Minn. 79
• Parties: CITY OF WABASHA v SOUTHWORTH.
• Court: Minnesota Supreme Court

54 Minn. 79

55 N.W. 818

CITY OF WABASHAvSOUTHWORTH.

Supreme Court of Minnesota.

June 29, 1893.

(Syllabus by the Court.)

1. Where a cellar way, trapdoor, scuttle, or the like is put in a public sidewalk for the convenience of the abutting property, as between the owner and the city, the duty of maintaining it in a safe condition devolves upon the former, and he cannot release himself of this duty by merely abandoning the use of the structure. He can only do so by removing it and restoring the sidewalk to its original condition.

2. If, through the negligence of the property owner, the structure becomes unsafe, and injury results, for which the city is liable because of neglect of its duty to keep its streets in a safe condition for travel, it may, upon payment of damages to the person injured, recover over from the owner by whose fault (as between him and it) the injury was occasioned.

3. The mode of procedure provided by the charter of the city of Wabasha (Sp. Laws 1889, c. 13, subc. 7, § 16) is not exclusive, but the city may pay the damages, without suit, and then recover over in an action against the property owner.

4. Evidence held sufficient to justify a finding that the defendant negligently suffered and permitted a trapdoor over a hatchway in a sidewalk to become decayed and insecurely supported so as to become unsafe for travel.

Appeal from district court, Wabasha county; Start, Judge.

Action by the city of Wabasha against Asahel D. Southworth to recover the amount plaintiff was required to pay one Schinzel for injuries sustained by a defective sidewalk along defendant's premises. Plaintiff had judgment, and defendant appeals. Affirmed.

J. F. McGovern and Gould & Snow, for appellant.

John W. Steele and Lloyd W. Bowers, for respondent.

MITCHELL, J.

If the findings of fact were justified by the evidence, there is nothing new or doubtful in the law governing this case. In order to entitle the plaintiff to recourse on the defendant for the money which it had paid in settlement of the claim of Schinzel for injuries sustained by reason of the defective sidewalk, it was necessary to establish-First, that the city was liable to Schinzel by reason of negligence in the performance of its duty to the public to keep its streets in safe condition; and, second, that defendant was also liable to Schinzel by reason of his negligence in constructing or maintaining the nuisance in the street which caused the injury. If these two facts were established, then the right of the city to recourse against the defendant is not, and could not successfully be, denied.

There is nothing in the point that the mode of procedure prescribed by the city charter (Sp. Laws 1889, c. 13, subc. 7, § 16) is exclusive, and that the city's only remedy was to let the claim of Schinzel go to judgment against both it and Southworth, pay the judgment, and then enforce it against Southworth. This, like similar provisions in other charters, is designed to aid and not to hinder cities in dealing with such claims, so that the liability of a third party may be determined and enforced in the same action in which that of the city is determined and enforced. The only effect of the city's settling the claim without such judgment was that the questions upon which the liability of Southworth depends were left open. See Jones v. City of Minneapolis, 31 Minn. 230,17 N. W. Rep. 377;Clark v. City of Austin, 38 Minn. 487,38 N. W. Rep. 615;Mill Co. v. Wheeler, 31 Minn. 121,16 N. W. Rep. 698.

The court found that the city might, by the exercise of ordinary care, have known of the unsafe condition of this sidewalk in time to repair it before the accident occurred. This finding, which is not assailed, settles the question of the city's liability to Schinzel.

Passing over the finding to the effect that this hatchway in the sidewalk was originally constructed in a negligent and unsafe manner, (which we think was justified by the evidence,) the court further found that the defendant knew, or by the exercise of ordinary care might have known, of the existence and character of this hatchway and covering at the time he purchased the property;...