Dahl v. Nelson

• Decision Date: 26 January 1953
• Docket Number: No. 7277,7277
• Citation: 56 N.W.2d 757,79 N.D. 400
• Parties: DAHL v. NELSON et al.
• Court: North Dakota Supreme Court

Page 757

56 N.W.2d 757

79 N.D. 400

DAHL v. NELSON et al.

No. 7277.

Supreme Court of North Dakota.

Jan. 26, 1953.

Syllabus by the Court.

1. Before liability can attach to a city because of an unsafe condition of a street, it must be shown that the city had either actual or constructive notice of the condition.

2. Before constructive notice of a defect in a street will be imputed to a city, the defect must have existed for a sufficient length of time to afford municipal authorities a reasonable length of time to discover it and to take some steps to protect the public.

3. What constitutes a reasonable duration of time for which a defect in a street must exist before constructive notice of the defect will be imputed to a city, depends upon the nature of the defect, its location and other circumstances of the case.

4. A city is only required to exercise reasonable care to discover and remedy defects in its streets.

5. Where it was shown that a vehicle track in a muddy street in an outlying section of a city, consisting of two ruts which straddled a manhole, had existed for a period of one day and that by 8:30 P. M. of that day the ruts had worn to a sufficient depth to constitute the manhole casing an obstruction to traffic, the evidence was insufficient to impute constructive notice of a defect in the street to the city.

Conmy & Conmy, Fargo, for defendant and appellant.

Wattam, Vogel, Vogel & Bright, Fargo, for defendant and respondent, nelson.

Lanier & Lanier, Fargo, for plaintiff and respondent.

BURKE, Judge.

In this action plaintiff, guardian ad litem for his daughter, sought to recover damages for injuries received by her, as the result of a collision of an automobile, in which she was riding as a guest, with the top of a manhole encasement inset at the center of one of the streets of the City of Fargo. It was alleged in plaintiff's complaint that plaintiff's daughter's injuries were proximately caused by the gross negligence of the driver of the car, Henry Nelson, and by the negligence of the City of Fargo. Trial of the action resulted in a verdict for the dismissal of the action as to the defendant, Nelson, and a verdict for damages against the defendant City of Fargo. Judgment was entered accordingly. After judgment, the defendant, City of Fargo, moved for judgment notwithstanding the verdict or for a new trial. This motion was denied and the City of Fargo has appealed from both the order denying the motion and from the judgment. There are ten specifications of error, which appellant, for purposes of the argument, has grouped under five general headings. The first of these is that the court erred in denying appellant's motion for directed verdict, made at the close of the trial of the case. Since we have concluded that the defendant city was entitled to a directed verdict upon one of the grounds urged and since that conclusion disposes of this appeal we shall confine our discussion to the issues arising in connection with that particular ground; namely, that there is no proof in the record that the defendant City of Fargo had any actual or constructive notice of the obstruction with which the automobile, in which plaintiff's daughter was riding, collided.

The accident occurred at about 8:30 P. M. on May 19th on 7th Ave. N. near its intersection with 18th St. in the City of Fargo. When dry, 7th Ave. had a gravel and cinder surface but that evening 'the streets in that area were muddy, pock marked with water and rutty.' 'There was one main traversed rut going down the center of the road, with considerable mud on either side of the road and in between the ruts, which were six to eight inches deep.' The two ruts straddled the manhole encasement set in the center of 7th Ave. and the defendant Nelson proceeding westward on 7th Ave. driving with his wheels in the ruts struck the top of the encasement with some part of the undercarriage of his car. The level of the general street surface was even with the top of the manhole, but it is clear that at the time of the accident, because of the single track through the mud and the depth of the ruts, the casing of the manhole had become an obstruction to traffic. The mere presence of an obstruction of this type in a street and the occurrence of an accident is not sufficient to fix liability upon a city. Before liability can attach to a city because of an unsafe condition of a street, which the city did not itself create, it must be shown that the city had actual or constructive notice of the condition. Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848; Williams v. Wessington Twp., 70 S.D. 75, 14 N.W.2d 493; Scoville v. Town of West Hartford, 131 Conn. 239, 38 A.2d 681; Tillotson v. City of Davenport, 232 Iowa 44, 4 N.W.2d 365; Gerber v. City of Pittsburgh, 343 Pa. 379, 22 A. 721.

In this case plaintiff contends that the evidence is sufficient to make the question of notice, either actual or constructive, a question for the jury. The evidence he relies on is contained entirely in the testimony of the witness, Willits. This witness lived in the neighborhood where the accident occurred. He drove back and forth on 7th Ave. N. regularly. About ten days before the accident he noticed that the cover of the manhole with which we are concerned was 'tipped over', that is to say; it was in place but it was upside down. He stopped and replaced the cover in its proper position. He told no one of this incident at that time. Upon the day of this occurrence it was more or less dry and there were no ruts in the street. Probably the same day, but within a day or two afterwards, he noticed that some cinders had been placed around the manhole. On the day of the accident, between five and six o'clock P. M. he drove west on 7th Ave. N. When he came to the manhole he crowded one of his front wheels against the wall of the manhole and thus lifted his car so that he had no trouble. When asked for how long a time he had been crossing the manhole in this manner he replied, 'I can't remember exactly but it was for about one day.' The argument is made that from this evidence the jury reasonably could have inferred that the manhole casing had been struck by a passing vehicle ten days before the accident with sufficient force to turn the cover upside down; that at that time therefore, the condition of the street was dangerous to traffic; that a street maintenance crew attempted to remove the danger by placing cinders around the manhole, and, because of the subsequent accident, that the maintenance work had been negligently done. The argument is not sound in that its premises are in some respects purely speculative and in others, contrary to positive testimony. The testimony of Willits affirmatively established that at the time he found the manhole cover upside down, the street was not dangerous to traffic. He stated that the day was more or less a dry day and that at that time there were no ruts in the street. This testimony together with the uncontradicted testimony that the top of the manhole casing was even with the level of the street clearly demonstrates that at that time the manhole casing was not an obstruction or a potential danger to traffic on the street. In the circumstances any conclusion as to the cause of the overturning of the manhole cover would be nothing but a guess or speculation. It might have been flipped over by being struck sarply by the tire of a passing vehicle or it might have been left upside down by some workman, it could not have been overturned by being struck by the frame or undercarriage of a passing vehicle. The jury might justifiably have reached the conclusion that the cinders were placed around the manhole by city employees. But at the time the cinders were placed, the street was relatively dry, there were no ruts, and the manhole casing did not project above street level. In short, there was no apparent danger of which the city employees could take notice. It is clear therefore that there is no proof that the city had actual notice that the manhole casing was, or was likely to become an obstruction to traffic in the street.

The evidence as to constructive...