Gellenbeck v. City of Mobridge
| Decision Date | 08 March 1918 |
| Docket Number | 4175 |
| Parties | ELLEN GELLENBECK, Plaintiff and respondent, v. CITY OF MOBRIDGE, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Walworth County, SD
#4175--Affirmed
J. E. Clayton, Pat Morrison, Julius Skaug
Attorneys for Appellant.
No appearance for Respondent.
Opinion filed March 8, 1918. Rehearing Denied May 7, 1918
Action for personal injury alleged to have been received by plaintiff by reason of having fallen into a hole in a sidewalk in defendant city. There was verdict and judgment for plaintiff, and defendant appeals.
The only material contention urged by appellant is that it had no notice of the defect in the sidewalk which is alleged to have caused respondent's injury. It appears from the testimony preserved in the record that a new business building had just recently been constructed in the city of Mobridge upon one of its principal streets; that about the 1st of November, 1911, a cement sidewalk 10 feet wide was constructed in the public street along and adjoining the side of said new building; that a hole, for the purpose of admitting light into the basement of said building, was constructed about 22 inches wide, 4 feet long and 7 feet deep; that no railing, guard, or screen of any kind had been placed around or over this hole at the time of the accident; that this hole remained in said unguarded condition from about the 8th of November until the night of the accident, which occurred about 8 o'clock p.m. on the night of November 21, 1911; that respondent was a stranger in the city of Mobridge, and whilst she was lawfully upon said sidewalk passing along the side of said building, in company with her husband, she fell into said hole and was injured; that by reason of the darkness of the night said hole was not visible to respondent, and that she had no previous knowledge of the existence thereof; that no street or other light was so placed in said city as to reveal the presence of said hole at the time respondent fell therein. We are of the opinion that under these circumstances the appellant must be imputed with having notice of the dangerous condition of said sidewalk by reason of the existence of said unguarded hole. This is not a case where there was once a safe sidewalk that had become out of repair, or where there existed some latent defect in an otherwise apparently safe walk; but the defect here involved was one of original construction, perfectly visible to whomsoever might pass along or inspect the same by daylight; this hole in question was a part of the original construction of a newly made sidewalk constructed by the lot owner along the side of said new business building.
Under the law of this state the care and control of public streets of a city is in charge of the city Council or commissioners, and it is their duty to inspect and supervise the construction of such sidewalks upon the streets, and to know and ascertain that such sidewalks are so constructed, as to be reasonably safe for persons lawfully using the same. We are therefore of the opinion that the appellant was negligent in permitting this hole in said sidewalk to remain unguarded by any rail, screen, or guard during the darkness of the night without any street or other light to warn pedestrians of the existence of the danger of falling therein, and that the city must be imputed with implied knowledge of such dangerous condition of said street. Although a sidewalk may be constructed by an adjoining lot owner, the construction still is under the control and supervision of the city whose duty it is to see that the same is made reasonably safe for travel. The sidewalk in question was in a very unsafe condition at the time respondent was injured, and which condition should have been known to defendant city. Boucher v. New Haven, 40 Conn. 456; Village of Jefferson v. Chapman, 127 Ill. 438, 11 AmStRep 136; Sherwin v. Aurora, 257 Ill. 458, 43 LRA (NS) 1116, and note; Smith v. Yankton, 121 N.W. 848; 28 Cyc. 1386.
Appellant also assigns as error the overruling of a motion to direct verdict in favor of appellant on the ground that there was no evidence to show that respondent had complied with the provisions of chapter 90, Laws of 1907, or that plaintiff served on the City clerk of appellant, within the time allowed by law, a notice specifying the date and character of the injury alleged. Section 1, c. 90, Laws of 1907, provides that:
While there is no evidence in the record tending in any manner to show any compliance with the provisions of this statute, still, we are of the view that appellant is not in a position to take advantage of this lack of proof under the record of this case. We are of the opinion that the service of the 60 days' notice is in the nature of a statute of limitation, and that a failure to comply therewith by the failure to give such notice can only be raised by being affirmatively pleaded by answer. The complaint alleged the service of such a notice on January 13th, following the alleged injury which occurred November 21st. The answer, as to that...
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