Fenton v. Ackerman
| Decision Date | 27 April 1939 |
| Docket Number | 8185. |
| Citation | 285 N.W. 516,66 S.D. 465 |
| Parties | FENTON v. ACKERMAN. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; Lucius J. Wall, Judge.
Action by Verne Fenton against M. L. Ackerman for injuries sustained when guardrail protecting the areaway in sidewalk along defendant's building gave way, causing plaintiff to fall into areaway. Verdict for defendant and from judgment thereon, plaintiff appeals.
Affirmed.
Charles Lacey, of Sioux Falls, for appellant.
Danforth & Davenport, of Sioux Falls, for respondent.
The jury found for defendant in this action brought to recover damages for injuries suffered when a guardrail gave way and precipitated plaintiff into what plaintiff alleged to be an areaway maintained in a sidewalk for the convenience of defendant's abutting property.
At the time of plaintiff's unfortunate experience, defendant was the owner and in possession of a building occupying the northwest corner of the intersection of Phillips Avenue and Seventh Street in Sioux Falls, South Dakota. An opening about four feet wide extends along the full length of the building on Seventh Street, between it and the sidewalk. The depth of this opening increases gradually from two and a half feet at the rear to six feet at the front of the building. A two pipe guardrail, supported by uprights embedded in the sidewalk and by cross bars attached to the building, runs along the edge of the sidewalk nearest the building as a warning and protection to the public. As plaintiff was passing along Seventh Street he paused and leaned against the top rail. It gave way and he fell into the opening and received the injuries of which he complains.
The history of the construction of the sidewalk, and a brief further description of it, are necessary to an understanding of that which follows.
The building was erected in about 1883. At that time there was no sidewalk along Seventh Street, and that street was approximately on a level with the middle of eight large basement windows. Thereafter the City of Sioux Falls raised the grade of Seventh Street and constructed a sidewalk on a level with the top of these basement windows. The building extends clear up to the lot line on Seventh Street, but only part way back towards the alley. The sidewalk, however, was constructed along a line four feet away and parallel with the lot line throughout the full length of the lot. Thus, whereas the sidewalk was fourteen feet wide and was built up to the lot line throughout the remainder of the block on Seventh Street, it was but ten feet wide, and was four feet from the lot line, along the full length of defendant's property. The grade of the sidewalk and street as established and constructed by the city being higher than the grade of defendant's property, the guardrail described was erected along the edge of the sidewalk all of the way back to the alley, although defendant's building only occupied a little more than the front half of the lot. The canyon into which plaintiff fell was thus created between the sidewalk and the building within the limits of the highway.
Defendant purchased the property after the city had created the condition in question. Thereafter, defendant rebuilt the sidewalk, and in so doing reproduced the situation the city had created, including a reinstallation of the guardrail. The evidence also reveals that defendant thereafter occasionally repaired the guardrail.
Plaintiff's theory of the case is predicated upon the following language contained in comment (d) under statement 350 of the Restatement of the Law of Torts: "While an owner of land over which there is a public highway or which abuts thereon is not under any duty to maintain its surface so as to be reasonably safe for travel, he is subject to liability if reasonable care is not exercised by him or on his behalf to keep in repair a skylight or grating over a vault, coal hole or an areaway which the municipality permits him to create in the highway or which the municipality so creates for his sole benefit."
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