Cummings v. Henninger

• Decision Date: 22 May 1925
• Docket Number: Civil 2292
• Citation: 236 P. 701,28 Ariz. 207
• Parties: C. L. CUMMINGS, Appellant, v. GEORGE HENNINGER, Appellee
• Court: Arizona Supreme Court

236 P. 701

28 Ariz. 207

C. L. CUMMINGS, Appellant, v. GEORGE HENNINGER, Appellee

Civil No. 2292

Supreme Court of Arizona

May 22, 1925

APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge. Affirmed.

Mr. O Gibson, for Appellant.

Mr. C V. Manatt, for Appellee.

OPINION

JONES, Superior Judge.

On December 13, 1922, the plaintiff below (appellee here) tripped and fell to his severe injury while walking on a board sidewalk abutting the premises of the defendant Cummings (appellant here) and one Oskar Gast on Allen Street in Tombstone, Arizona. Thereafter he brought an action against Cummings, Gast, and the city to recover damages for his injuries. Gast and the city were exonerated by the court. The case against the appellant was tried before a jury, and resulted in a verdict for the plaintiff in a substantial amount. From the judgment entered thereon, this appeal is taken.

The gravamen of the complaint is that the appellant and Gast built and maintained the board sidewalk abutting their premises on a public street, and that it had with the knowledge of themselves and the city become come out of repair and dangerous to travelers who might use it; that appellant and Gast had undertaken to repair the sidewalk, but had done so negligently with the result that it "was still dangerous and faulty"; "that said injuries so received by the plaintiff were caused wholly from the faulty and defective and dangerous condition of said sidewalk as aforesaid, and from the negligent manner in which the defendants Cummings and Gast had repaired the same."

The answer was in effect a general denial.

Upon the trial the evidence disclosed that, without permission or objection from the city, the appellant and Gast had built the sidewalk without negligence some 8 or 10 years before the accident. Thereafter for a period of years the appellant at his own expense undertook to keep the sidewalk in repair, and on one occasion altered it to suit the needs of his abutting property. The city never took actual control of the sidewalk or repaired or maintained it in any way. The testimony amply supported the charge that the sidewalk was in a dangerous condition at the time of the accident, and that the plaintiff's injury was proximately due thereto. The evidence did not, however, establish the allegation that the injury was due to negligent repairing.

The court charged the jury that the issue for them to determine was whether the appellant had built and maintained the sidewalk in question as a reasonably prudent man would do and that, if he had failed in that regard so that a dangerous condition arose, leading to the plaintiff's injury, the defendant must respond in damages to compensate the plaintiff for his loss.

The court directed a verdict in Gast's favor. The city was discharged because of a provision in its character reading as follows:

"The said corporation shall not be liable to any one for any loss or injury to person . . . for any injury or damages happening to such person . . . on account of the condition of any . . . sidewalk." Section 2, art. 10, c. 39, Laws of 1881, p. 71.

It is assigned as error that the case was tried and the verdict rendered on the theory that the appellant had neglected a duty owing to the public to keep the sidewalk reasonably safe for travelers, while the complaint was drawn on the theory that the injury was due to negligent repairing. It is true that the complaint does not allege and perhaps emphasize defective repairing by appellant as the cause of the injury, but, as we have shown in the statement above, it also alleges that the accident was caused by the faulty and dangerous condition of the sidewalk which the appellant had knowledge of and failed to remedy. This was sufficient basis for the court's charge, and consequently for the verdict of the jury. Appellant's main assignment of error, however, is that the facts do not support a finding of negligence against him.

The court in substance charged the jury that it was for them to determine whether the defendant acted as a reasonably prudent man in building and maintaining the sidewalk, and that if it became defective through a failure on his part to exercise due care, and that such defect was the cause of the accident, their verdict should be for the plaintiff. In effect this told the jury that the defendant had built and maintained the sidewalk. We do not understand that error is assigned in that behalf, although there are some general assignments and observations in the briefs which might be considered as a challenge to the court's right to take the question of maintenance from the jury. The undisputed evidence on this question was such, however, that we think no other inference therefrom is justifiable than the one the court below drew. It may be conceded that an occasional repairing would not constitute maintenance, but the facts in this case are that the sidewalk was built, repaired, and altered by the appellant at will, without let or hindrance from the city, and that he treated it at all times as an instrumentality of his own.

The remainder of the charge imposed on the appellant the duty to exercise due care, which appellant insists did not arise from the fact that he had built and maintained the sidewalk. That is the substantial question in the case.

Undoubtedly, the general rule is that a property owner is under no common-law duty to use due care to keep safe the sidewalk abutting his premises (McQuillin, Municipal Corporations, § 1826); and it may be, as appellant argues, that if the property owner, without negligence, merely builds the abutting sidewalk, he is not thereafter charged with the duty to use due care to keep it reasonably safe, such as is imposed where a servitude for the exclusive benefit of the abutting property is created in a sidewalk, familiar examples being trap-doors, light-wells, manhole lids, gratings, and the like. Dillon, Municipal Corporations, 5th ed., § 1726. See note in 115 Am. St. Rep. 994.

In addition to building this sidewalk, however, the appellant thereafter controlled and maintained it for a number of years, and these facts, in view of the exemption of the city above noted, in our opinion, as we shall undertake to show, did create such duty.

As a general proposition, one who voluntarily creates and maintains a condition for the use of others is, in the absence of some privilege, charged with the duty to exercise care to prevent that condition from becoming a source of danger to those who use it. The sidewalk in this case was subject to rapid deterioration. Without attention it would necessarily become a nuisance, fraught with serious danger to pedestrians. That Cummings, its author and maintainer, was charged with the duty to use due care to keep that sidewalk reasonably safe for travelers would seem clear, unless some privilege existed in his favor, or at least, protection to the...