Fritz v. City of Watertown

• Decision Date: 28 April 1907
• Citation: 21 S.D. 280,111 N.W. 630
• Parties: P. M. FRITZ, Plaintiff and respondent, v. CITY OF WATERTOWN, Defendant and appellant.
• Court: South Dakota Supreme Court

21 S.D. 280

111 N.W. 630

P. M. FRITZ, Plaintiff and respondent, v. CITY OF WATERTOWN,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. George H. Marquis, Judge

Affirmed

A. Sherin

Attorneys for appellant.

C. K. Snyder, Seward & McFarland

Attorneys for respondent.

Opinion filed April 28, 1907

HANEY, J.

This is an action for personal injuries caused by a defective sidewalk. The appeal is from a judgment in favor of the plaintiff and an order denying defendant’s application for a new trial.

Defendant objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action. It is contended that “the complaint was insufficient, in this: It simply shows that the respondent fell on a certain street and was injured, and that he demanded $4,000 damages. It is insufficient because it does not set forth any facts to show what his occupation was before the injury, or what he was capable of earning before the injury, or any facts on which the court or jury could say how much he was injured.” The objection to the introduction of any evidence cannot serve the purpose of a motion requiring the pleading to be made more definite and certain. If, upon the well-pleaded facts, which the objection confessed, the plaintiff was entitled to even nominal damages, the objection was properly overruled. Moreover, in this class of cases, under a general allegation of damage in the complaint, the plaintiff may recover for all the injuries necessarily resulting from the act or omission complained of, and it is needless to specify them. 5 Ency. Pl. & Pr. 749. A mere inspection of the complaint is sufficient to justify the ruling of the learned circuit court. It contains these allegations:

“That solely by reason of defendant’s negligence, as aforesaid, and the said plaintiff’s tripping and falling as aforesaid, the right arm, shoulder, and hand of said plaintiff were seriously injured and permanently injured, and his body otherwise bruised and injured, from which injuries he became and continues to be sick, sore, maimed, and disordered, and suffered and still suffers great pain and distress; that he has been and will be permanently partially incapacitated and prevented from carrying on his usual occupation, which was that of a laborer, and said plaintiff was receiving an income of $576 per year, and he has necessarily expended money to about the sum of $30 for medical assistance, bandages, and in endeavoring to be cured of his said injuries, that plaintiff has suffered damage to the amount of $4,000.”

Defendant moved for a directed verdict upon the following grounds:

(1) Because the street where the accident occurred had been previously vacated, and defendant was under no obligation to repair the walks therein;

(2) because the evidence failed to show either actual or constructive notice of the defect which caused the injuries; and

(3) because there was no evidence to show that the special charter under which the defendant is organized requires it to keep any sidewalks in repair.

Plaintiff’s injuries resulted from his being tripped by a loose plank in a sidewalk on what was known as “Cherry street.” The accident occurred October 22, 1904. Defendant proved the adoption and publication in September, 1903, of a resolution by its council vacating “Cherry street on the north line of Dakota avenue to the north line of the Chicago & Rock Island and Minneapolis & St. Louis Railways.” Whether this resolution embraced the locus in quo is not material, because there was abundant evidence to justify a jury in finding ‘that the defendant had permitted the use of the sidewalk where the accident occurred to continue in all respects as before the resolution was adopted. It is elementary that before negligence can be imputed to any party a duty, the breach of which constitutes the tort in question, must be shown. 21 Am. & Eng. Ency. Law, 466. This principle applies to actions for personal injuries resulting from defective sidewalks. Strait v. Town, 96 NW 695. Ordinarily the duty to keep in repair extends only to sidewalks in established streets; but can a city absolve itself from the obligation by merely adopting and publishing a resolution vacating a street, wherein the sidewalks are permitted to remain and be used as they were before the vacation? It has...