Drake v. City of Mobridge

• Decision Date: 08 July 1932
• Docket Number: 7247.
• Citation: 243 N.W. 429,60 S.D. 79
• Parties: DRAKE v. CITY OF MOBRIDGE.
• Court: South Dakota Supreme Court

243 N.W. 429

60 S.D. 79

DRAKE v. CITY OF MOBRIDGE.

No. 7247.

Supreme Court of South Dakota

July 8, 1932

Appeal from Circuit Court, Walworth County; J. H. Bottum, Judge.

Action by Clarence Drake against the City of Mobridge. From a judgment for plaintiff and an order overruling defendant's motion for a new trial, defendant appeals.

Affirmed.

A. A Brown, of Mobridge, for appellant.

Morrison & Skaug, of Mobridge, for respondent.

POLLEY J.

This action was brought to recover damages for injuries suffered by the plaintiff, both to his person and to his automobile by driving into a hole in one of the streets in the city of Mobridge. The accident occurred at the northwest corner of the intersection of Grand Crossing boulevard with Second Avenue East. The boulevard is 80 feet in width; Second Avenue East is 66 feet in width. There is a driveway 34 feet in width, graded, graveled, and maintained along the central portion of each of these streets. Along the north side of the boulevard and the west side of Second avenue are cement sidewalks. These sidewalks are each 5 feet in width, with a space one foot in width between the sidewalk and the lot line. On the street side of each sidewalk is a parking some 8 feet or more in width. Beyond the parking is a surface drain for the purpose of carrying off surface water. The bottom of this drain or ditch is some 30 inches lower than the level of the driveway along these streets. There is a cement crosswalk along the north side of the intersection crossing Second avenue; also a cement crosswalk extending along the west side of the intersection crossing the boulevard. There is a culvert under the crosswalk some 12 to 15 feet east of the lot line on Second avenue; also a culvert under the crosswalk crossing the boulevard some 15 to 18 feet south of the lot line along the north side of the boulevard. At the same distance south of the north line of the boulevard is a corrugated iron culvert extending across the driveway on Second avenue. The slope of the ground is such that water runs south along the drain on the west side of Second Avenue East; then through the culvert under the west end of the crosswalk crossing the avenue; then into the culvert crossing the avenue. The water running through the culvert under the north end of the crosswalk along the west side of the intersection also drains into the culvert crossing the avenue and then runs on to the east. A short time prior to the accident the drain at the west end of the culvert that crosses Second avenue had been cleaned out, and in doing so an opening had been dug extending into the street grade some 18 inches to 2 feet, and about 30 inches in depth.

There is a filling station at the northeast corner of the intersection. Just prior to the accident plaintiff drove out of the filling station in a westerly direction into the avenue just north of the intersection, intending to drive westerly on boulevard. He drove across to the west side of the avenue; then turned south into the intersection; then he turned west into the boulevard; but in turning west on the boulevard he drove too close to the edge of the driveway and the right front wheel of his car dropped into the hole that had been made in cleaning out the west end of the culvert. He received some personal injury and his car was damaged. The accident took place about 4 o'clock in the afternoon on the 31st day of May 1930. Verdict and judgment were for plaintiff, and, from such judgment and an order overruling defendant's motion for a new trial, defendant appeals.

For its defense the city alleges that the accident in which plaintiff received his injuries was caused by negligence on the part of the plaintiff, and in its brief in this court defendant assigns insufficiency of the evidence to support the verdict for the plaintiff. The accident took place in broad daylight. Plaintiff's view was in no way obstructed. He does not claim that he could not have seen the opening in the street had he been looking, but merely claims that he did not see it or know it was there until the wheel of his car dropped into it. He testified that there were...