Clark v. City of Austin
| Decision Date | 11 June 1888 |
| Citation | 38 N.W. 615,38 Minn. 487 |
| Parties | Allen W. Clark v. City of Austin, impleaded, etc |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Mower county, against the city and one Galloway, to recover for personal injuries occasioned by his falling into an excavation, alleged to have been made by Galloway, adjoining a public street in the city, and left unguarded and without lights or other signals to warn travellers on the street. The accident occurred in the evening of May 17, 1887. At the trial, before Farmer, J., the jury by their verdict found in favor of Galloway, but awarded $ 550 damages against the city, which appeals from an order refusing a new trial.
Order affirmed.
Lafayette French, for appellant.
S. D Catherwood, D. B. Johnson, Jr., and J. M. Burlingame, for respondent.
The theory of this action is that the defendant Galloway unlawfully made an excavation in one of the public streets of the city, and that the city, in respect thereof, neglected its duty to keep the street in good repair and safe condition for persons passing upon it. The complaint can hardly be said to present this case as to the defendant Galloway; but the case was manifestly tried without regard to any defects in the complaint to charge Galloway. So, also, if there was any defect in the reply in respect to putting in issue the new matter in the answer of the city, charging that plaintiff's own negligence contributed to bring about the injury complained of, the case was fully tried as it would have been had the reply been sufficient in that respect. The sufficiency of the pleadings, therefore, will not be considered. The evidence was such as to justify the finding of the jury as against the city, both in respect to its negligence, and the alleged contributory negligence of the plaintiff.
We have, then, to consider only the question of law presented. The charter of the city of Austin (Sp. Laws 1887, c. 24,) provides, in section 14, chapter 11: "All accounts claims, or demands of every kind whatsoever, against the city of Austin, shall first be presented to the common council of said city for their consideration and disposal, as to them shall appear just and lawful, before any suit or action at law, based upon such account, claim, or demand, shall be commenced or prosecuted against said city." Plaintiff's claim for damages was not so presented, and this is claimed as a reason why he cannot maintain the action. Standing alone, this would seem to refer to accounts, claims, or demands arising upon contract, express or implied, and not to causes of action arising upon torts. But whatever doubt there might be as to this applying to a claim for damages arising from neglect of the city of its duty to keep streets, etc., in repair, is set at rest by section 18, chapter 7, of the charter, which provides that no action shall be maintained against the city This specific provision in the case of particular claims not clearly coming within the intent of section 14, chapter 11, operates to make for such claims a rule differing from that laid down in said section 14. It can hardly be presumed that it was intended that the claims specified in section 18, chapter 7, should be presented twice: once in the notice to the mayor or recorder, and again to the common council. The notice prescribed by section 18, chapter 7, having been given, it was enough.
The instruction, (plaintiff's fifth request,) standing...
To continue reading
Request your trial