Dillow v. City of Yuma

• Decision Date: 02 January 1940
• Docket Number: Civil 4156
• Citation: 55 Ariz. 6,97 P.2d 535
• Parties: DELLA C. DILLOW, Appellant, v. CITY OF YUMA, a Municipal Corporation Within the State of Arizona, Appellee
• Court: Arizona Supreme Court

97 P.2d 535

55 Ariz. 6

DELLA C. DILLOW, Appellant, v. CITY OF YUMA, a Municipal Corporation Within the State of Arizona, Appellee

Civil No. 4156

Supreme Court of Arizona

January 2, 1940

APPEAL from a judgment of the Superior Court of the County of Yuma. Wm. G. Hall, Judge. Judgment reversed and cause remanded for new trial.

Messrs Fred L. Ingraham and J. Fred Hoover, for Appellant.

Mr William H. Westover, for Appellee.

OPINION

ROSS, C.J.

The plaintiff commenced this action against the City of Yuma for damages for personal injuries sustained in falling upon one of its cement sidewalks, which she alleges was defective as will hereafter appear.

After plaintiff had introduced her evidence, on motion of defendant the jury was instructed to return a verdict for defendant. The grounds upon which the court directed the verdict for defendant are (1) that the charter of the City of Yuma does not make it the duty of the city "to keep sidewalks in repair and in safe condition for the use of the public" (2) the city is not an insurer against accident of people who walk along its sidewalks, and the evidence is insufficient to show the city was negligent; and (3) variance between the allegations and the proof.

The plaintiff has appealed, contending the court's rulings were erroneous and prejudicial. By her assignments she first presents this proposition of law: That it was the duty of the defendant to keep its sidewalks reasonably safe for travel thereon. This duty is one that arises from the fact that the law gives the defendant authority and power over its streets and sidewalks. Among the enumerated powers given to cities, in addition to those in their charters, are:

"... 1. To lay out and establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds, and vacate the same;... 17. to establish and alter the grade of streets, alleys and sidewalks, and to regulate the manner of using the streets and pavements in the city to protect the same from injury by vehicles driven thereon;... " Section 408 Revised Code of 1928.

Defendant's charter contains similar provisions. Both under the statute and its charter the defendant was vested with the power to improve and control its streets and sidewalks, and the facts show that it assumed to act under such power by constructing the sidewalk where the plaintiff was injured.

There are two lines of cases, one that holds the city in such circumstances is under a duty to keep its streets and sidewalks reasonably safe for travel thereon and liable in damages to persons sustaining injury by reason of their unsafe condition, 43 Corpus Juris, 974, section 175, and the other holds that there is no liability, on the theory that the negligent acts or omissions causing the injury are those of public officers performing a governmental function, 43 Corpus Juris, 977, section 1756. We have aligned ourselves with those jurisdictions that hold a municipality vested with power to improve and control its streets and sidewalks is liable for injuries sustained for a failure to keep them reasonably safe for travel. Schultz v. City of Phoenix, 18 Ariz. 35, 156 P. 75; Town of Flagstaff v. Gomez, 23 Ariz. 184, 202 P. 401, 23 A.L.R. 661; City of Phoenix v. Clem, 28 Ariz. 315, 237 P. 168; City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296.

Plaintiff insists the evidence of negligence upon the part of defendant was sufficient to take the case to the jury. The complaint described the defect as being "a hole in and upon the said sidewalk, approximately twenty-four (24) inches in length, four or five inches in width and approximately two (2) inches in depth; that this condition had existed many months, to-wit, more than seven months prior to the injuries herein complained of, and was then known, and by reason of the length of time such condition had existed was and had been known by said defendant to exist, and that by reason of such condition, as hereinabove complained of, it was unsafe and dangerous to pedestrians passing over same;" and "the plaintiff... was walking along and upon said sidewalk at a point near said hole in an easterly direction at a moderate and cautious rate of speed and by reason of the said hole and want of repair in the said sidewalk at the place aforesaid as hereinabove described the plaintiff's right foot in so walking fell into said hole and came violently into contact with the bottom and side of said hole and the same tripped plaintiff and as a result thereof plaintiff was violently thrown down and in so falling plaintiff's body was violently thrown" etc.

There was evidence to sustain the above allegations. It appears therefrom that the defect in the sidewalk was on the north side of Second Street, between Main Street and Madison Avenue and near the southeast corner of the Arizona Properties Building and at a point where the travel is heavy. At that point the sidewalk is about five feet wide, and two feet inside the walk is a city light post. The plaintiff, on June 10, 1936, at about 10 A.M., was walking east on said sidewalk and just as she approached the city light post and was passing it she met a man carrying a heavy object on his left shoulder, and...