Emelle v. Salt Lake City

• Decision Date: 21 April 1919
• Docket Number: 3288
• Court: Utah Supreme Court
• Parties: EMELLE v. SALT LAKE CITY

181 P. 266

54 Utah 360

EMELLE v. SALT LAKE CITY

No. 3288

Supreme Court of Utah

April 21, 1919

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by Marguerite Emelle against Salt Lake City. From a judgment for defendant, plaintiff appeals.

AFFIRMED.

Geo. G Armstrong and W. E. Rydalch, both of Salt Lake City, for appellant.

APPELLANT'S POINTS.

By a long line of decisions it has been held that where the evidence is not brought up in the record, the court cannot determine any question depending on the construction of the evidence. Morgan v. Bankers Trust Company, 115 P 1047; 2nd Dec. Dig. Ap. & Er., section 671 (3); 2nd Dec. Dig. Ap. & Er., section 701, 4 C. J. 769, section 2712. And it will not be presumed that the trial court erred when it refused to give a requested instruction. Ayer v. Moon, 59 Ore. 599, 17 P. 991; Giles v. Ternes, 143 P. 491, 93 Kan. 140; State v. Riley, 41 Utah 225, 230; 126 P. 294; Rio G. W. R. Co. v. Utah Nursery Co., 25 Utah 187, 192; 70 P. 859; Fazio v. Construction Co., 134 P. 747, 43 Utah 120, 125; Massuco v. Tomasi, 67 A. 551, 80 Vt. 186; Ely v. Holloway, 147 P. 1128; Jolley v. Dunlap, 34 S.D. 213, 147 N.W. 980; Altaville v. Old Colony Street Railway Company, 222 Mass. 322, 110 N.E. 970; Mortensen v. Wagner, 145 N.W. 984, 95 Neb. 458.

That the verdict will not be disturbed if there is any substantial evidence to support it was held to be elementary in many of the following cases:

Grosteit v. Miller, 48 Utah 511, 160 P. 769; McFarlane v. Winters, 47 Utah 598, 601; Tremelling v. S. P. Co., 170 P. 170; Livestock v. Livestock Co., 43 Utah 554, 564; Wrathall v. Miller, 169 P. 946; Brown v. Salt Lake City, 33 Utah 222, 93 P. 570; Robinson v. Salt Lake City, 37 Utah 527, 109 P. 817; Gaines v. Ogden R. T. Co., 44 Utah 512, 141 P. 110; James v. Robertson, 39 Utah 414, 117 P. 1068; Shugren v. Salt Lake City, 48 Utah 320, 328, 159 P. 530.

The verdict of the jury is conclusive and cannot be disturbed though against the great weight of the evidence. McFarlane v. Winters, 47 Utah 598, 155 P. 437; Ewell v. Joe Bowers Mining Co., 23 Utah 192, 64 P. 367; 4 C. J. 851, Note C.; Bowman v. Ogden City, 33 Utah 196, 209; Brown v. Salt Lake City, 33 Utah 242; Needer v. Jennings et al., 28 Utah 271; 4 C. J. 771, section 2715, Note 61; Id. 774, section 2719, Note 9; Bruce v. Foley, 18 Wash. 96, 50 P. 935; Smith v. Glenn, 40 Wash. 262, 82 P. 605; Morgan v. Bankers Trust Company, 115 P. 1048, 63 Wash. 476; Copley v. U. P., 26 U. 361, 73 P. 517; Clark v. Ducheneau, 26 U. 97, 72 P. 331.

That the city is not an insurer of the safety of its streets was held in the authorities hereafter cited, which are referred to merely as illustrative rather than exhaustive of the numerous cases: Dillon, Mun. Corp., 5th Ed., section 1019, p. 2997; Elliott, Roads and Streets, 3d Ed., section 793 and cases cited; Shearman & Redfield on Negligence, 5th Ed., section 367, where it is said the city "does not warrant their absolute or even their reasonable safety."; Hunt v. New York, 109 N.Y. 134, 16 N.E. 320, 323; Canavan v. Oil City, 183 Pa. 611, 38 A. 1096; Morris v. Salt Lake City, 35 Utah 474, 487, Syl. 8; Scott v. Provo City, 14 Utah 31, which holds the person using a street to the exercise of reasonable care; Hunt v. New York, 109 N.Y. 134, 16 N.E. 320, 323 and cases cited, where the court said the language of the cases "has not always been carefully guarded." Smith v. City of Rexburg, 132 P. 1153.

Error in instructing on an issue not in the case is not ground for reversal in the absence of a statement of facts to show that appellant was injured thereby. Houston & T. C. R. Co. v. Loofs, 160 S.W. 300; Jackson v. So. Ry. Co., 73 S.C. 557, 54 S.E. 231; McCain v. Camden W. L. & I. Co., 89 S.C. 378, 71 S.E. 949.

The following cases show that as a matter of law the instruction was correct: Elliott, Roads and Streets, section 1131; Richardson v. Danvers, 176 Mass. 413, 50 L. R. A. 127, 57 N.E. 688; Rust v. Essex, 182 Mass. 313, 65 N.E. 397; Fox v. Clarke, 65 L. R. A. 234, 25 R. I. 415; Sutphen v. N. Hempstead, 30 N.Y.S. 128, 47 L. R. A. 299, Note; Leslie v. Grand Rapids, 78 N.W. 885, 120 Mich. 28; Doherty v. Ayer, 197 Mass. 241, 83 N.E. 677, 125 A. S. R. 355, 14 L. R. A. N. S. 816.

If the jury found the plaintiff wanting in the exercise of ordinary care, the width of the street would be of no consequence. If plaintiff claimed nothing on the ground of sufficient width, the jury could not have been misled. Not being pleaded, the question of liability on this ground could not be considered by the jury. Herndon v. Salt Lake City, 34 Utah 65, 85; Macomber v. Taunton, 100 Mass. 255, 257; City of Wellington v. Gregson, 31 Kan. 99, 1 P. 253, 47 A. R. 482; Teague v. Bloomington, 40 Ind.App. 68, 81 N.E. 103; Williams v. San Francisco & N.W. R. Co., 93 P. 122; McArthur v. Saginaw, 58 Mich. 357, 25 N.W. 313; 2 Dillon Mun. Corp., 5 Ed., section 1077; Elliott, Roads and Streets, section 800; Ward v. Salt Lake City, 46 Utah 623, 151 P. 905; Guthrie v. Swan, 51 P. 562, 5 Okla. 779; Chase v. Seattle, 141 P. 180, 80 Wash. 61; Perry v. Cedar Rapids, 87 Iowa 315, 54 N.W. 225; Combs v. Kirksville, 134 Mo.App. 645, 114 W. 1153.

We have heretofore reserved for full discussion the question as to the right of the city to set aside various parts of the streets for the different public easements which may be enjoyed therein, and we refer to the following illustrative cases and assert that they sustain the instructions of the court, particularly Nos. 10, 10 1/2, and 14: Macomber v. City of Taunton, 100 Mass. 255, 257; Ring v. Cohoes, 77 N.Y. 83, 35 A. R. 574; Dougherty v. Village of Horseheads, 159 N.Y. 154, 53 N.E. 799, 801; Dubois v. Kingston, 102 N.Y. 219, 55 A. R. 804, 6 N.E. 273; Vincennes v. Spees, 35 Ind.App. 389, 74 N.E. 277; Wellington v. Gregson, 31 Kan. 99, 1 P. 253, 47 A. R. 482; Teague v. Bloomington, 40 Ind.App. 68, 81 N.E. 103; McDonald v. St. Paul, 82 Minn. 308, 83 A. S. R. 428, 84 N.W. 1022; Robert v. Powell, 168 N.Y. 414, 85 A. S. R. 673, 55 L. R. A. 775, 61 N.E. 699; Smith v. Rexburg, 132 P. 1154; Cincinnati v. Fleischer, 63 O. S. 229, 58 N.E. 568; Wolff v. D. C., 21 App. D. C. 269, 69 L. R. A. 83; Keen v. City of Mitchell, 157 N.W. 1049; Short v. City of Carbondale, 249 Pa. 564, 95 A. 254; Loberg v. Amherst, 87 Wis. 634, 58 N.W. 1048, 41 A. S. R. 69; Canavan v. Oil City, 183 Pa. 611, 38 A. 1096; Raymond v. Lowell, 60 Mass. 524, 53 A. D. 577; City of Vincennes v. Thuis, 63 N.E. 315.

Wm. H. Folland, City Atty., and H. H. Smith and W. W. Little, Asst. City Attys., all of Salt Lake City for respondent.

RESPONDENT'S POINTS.

We maintain that the City is required by the use of reasonable diligence and vigilance to ascertain if the streets are out of repair, that they are required to hunt for any defect or obstruction and to see to it that the streets are kept in a reasonably safe condition. Herndon v. Salt Lake City, 34 Utah 76-79; Morris v. Salt Lake City, 35 Utah 474-487; Pettengill v. City of Yonkers, 29 N.E. 1096; McKinn v. Philadelphia, 19 L. R. A., N. S. 525; Valpariso v. Chester, 96 N.E. 768; Bills v. Salt Lake City, 37 Utah 513; Kent v. O. L. & I. Ry. Co., 167 P. 666; Grayson v. Damme Estate, 158 P. 387.

The trial Court ignores the ordinance of Salt Lake City, above referred to, and makes no qualifications or limitations as to what excuses a person for failure to observe a defect. Herndon v. Salt Lake City, 34 Utah 81; Davidson v. Tel. Co., 34 Utah 249; Burdett v. Winchester, 91 N.E. 880; Howard v. Osage City, 132 P. 188-9; Valpariso v. Chester, 93 N.E. 768; 1 Thompson on Neg. 427, page 411; Nilson v. Kalispell, 132 P. 1133; McCabe v. Butte, 125 P. 133.

And complacently ignores the decision in Bills v. Salt Lake City, 37 Utah 513. This instruction entirely overlooks the element of a movable obstruction, which may be in a different place at different times.

We asked for an instruction as to the duty of the City to protect and warn travelers against defects or obstructions, but the Court entirely refused to instruct on this subject, and the plaintiff was prejudiced thereby. Morris v. Salt Lake City, 35 Utah 474; Bills v. Salt Lake City, 37 Utah 515; Sweet v. Salt Lake City, 43 Utah 324; McKim v. Philadelphia, 19 L. R. A. (N. S.) 525; Elam v. Sterling, 20 L. R. A. (N. S.) 518-519-520-521-522.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff brought this action to recover damages for an injury received by her while riding a bicycle on one of the streets of defendant city. The injury occurred on the night of June 8, 1917, on what is known as State street, and as the complaint of the plaintiff and answer of defendant are of especial importance for reasons that will hereafter appear, we deem it necessary to set them out with more than ordinary fullness.

The complaint, in substance, alleges that State street, at the point in controversy, at all times mentioned, was open and improved to its full width by the defendant, and by defendant was paved, curbed, and guttered; that on the night in question and for a long time prior thereto defendant carelessly and negligently maintained and permitted to remain upon said paved, curbed, and guttered part of said street a certain wooden automobile approach at the point where the injury occurred, which approach extended from and beyond the curbed, guttered, and paved part of said street; that said approach was made of 2x6 stringers, with planks 2x6 and 2x8 and 9 feet in length running crosswise of said stringers that the same was weatherbeaten and of a gray color, and when in place it extended from the top of the curb over the gutter and onto the paved part of the street in a sloping or wedge shape; that it...