Goodman v. Village of McCammon

• Decision Date: 02 July 1926
• Citation: 42 Idaho 696,247 P. 789
• Parties: H. H. GOODMAN and ROSIE GOODMAN, His Wife, Respondents, v. VILLAGE OF MCCAMMON, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

247 P. 789

42 Idaho 696

H. H. GOODMAN and ROSIE GOODMAN, His Wife, Respondents, v. VILLAGE OF MCCAMMON, a Municipal Corporation, Appellant

Supreme Court of Idaho

July 2, 1926

MUNICIPAL CORPORATIONS-LIABILITY FOR DEFECTIVE STREETS-PERSONAL INJURY-EVIDENCE-QUESTION FOR JURY-INSTRUCTIONS.

1. Cities and villages are liable for negligent discharge of duty of keeping streets and alleys in reasonably safe condition.

2. Municipality is not liable for injuries caused by defective streets in absence of actual or constructive notice of defect.

3. Doctrine of res ipsa loquitur has no application to action for injury from defective sidewalk.

4. Evidence held insufficient to sustain recovery for injuries to woman stumbling over slight depression in sidewalk.

5. Question of liability of municipality for defective sidewalk or streets must be determined by particular facts of each case.

6. Evidence as to defective condition of sidewalk, causing injuries to woman stumbling over depression, presents question for jury.

7. Instruction that recovery cannot be had for injury occasioned by depression in sidewalk of depth of less than two inches held properly refused, as not correctly stating law.

8. Refusal of requested instruction, substantially covered in other instructions given, is not erroneous.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action by H. H. Goodman and Rosie Goodman against Village of McCammon, a municipal corporation, for personal injuries. Judgement for plaintiffs. Reversed and remanded.

Reversed and remanded, with costs to appellant.

Merrill & Merrill, for Appellant.

A municipality is not liable for injuries caused by defective streets, in the absence of actual or constructive notice of such defect. (Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660; City of Evansville v Belime, 49 Ind.App. 448, 97 N.E. 565; City of Huntington v. Bartrom, 48 Ind.App. 117, 95 N.E. 544; Commissioners of Delmer v. Venables, 125 Md. 471, 94 A. 89; Chase v. City of Seattle, 80 Wash. 61, 141 P 180; City and County of Denver v. Magiveney, 44 Colo. 157, 96 P. 1002; Anderson v. City of Wilmington, 6 Penne. (Del.) 485, 70 A. 204; Edwards v. City of Cedar Rapids, 138 Iowa 421, 116 N.W. 323; McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893; McKee v City of New York, 135 A.D. 829, 120 N.Y. Supp, 149; Wilton v. City of Spokane, 73 Wash. 619, 132 P. 404.)

The doctrine of res ipsa loquitur does not apply to an action for negligence against a municipality. (Corbin v. Benton, 151 Ky. 483, 152 S.W. 241, 43 L. R. A., N. S., 591; Borough of Du Bois v. Pancoast, 218 F. 65, 133 C. C. A. 662.)

A municipality is only required to keep its streets and sidewalks in a reasonably safe condition and a minor defect is not actionable. (McQuillin on Municipal Corporations, sec. 2785; Koch v. Denver, 24 Colo. App. 406, 133 P. 1119; Gastel v. City of New York, 194 N.Y. 15, 16 Ann. Cas. 635, 86 N.E. 833; Baker v. City of Detroit, 166 Mich. 597, 132 N.W. 462; Bennett v. City of St. Joseph, 146 Mich. 382, 109 N.W. 604.)

Peterson & Coffin, for Respondents.

"A corporation is not guilty of negligence for failure to build sidewalks on all of its streets but when it has constructed a walk it must keep it in a reasonably safe condition." (Moreton v. Village of St. Anthony, 9 Idaho 532, 75 P. 262; Carson v. Genessee, 9 Idaho 244, 108 Am. St. 127, 74 P. 862; Eaton v. City of Weiser, 12 Idaho 544, 118 Am. St. 225, 86 P. 541; Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660.)

The question of the municipality's negligence was for the jury. (Lusch v. Odin, 158 Ill.App. 657; Smith v. Yankton, 23 S.D. 352, 121 N.W. 848; Barron v. Watertown, 211 Mass. 46, 97 N.E. 622; Hakenson v. Neillsville, 152 Wis. 594, 140 N.W. 281; Sizer v. Estherville (Iowa), 135 N.W. 603; Robinson v. Omaha, 84 Neb. 642, 121 N.W. 969; San Antonio v. Ashton (Tex. Civ. App.), 135 S.W. 757; Preiss v. New York, 69 Misc. 492, 127 N.Y.S. 498; Czerniak v. Chicago, 161 Ill.App. 360; Louisville v. Laufer, 140 Ky. 457, 131 S.W. 192; Kelley v. Kansas City, 153 Mo.App. 484, 133 S.W. 670.)

If the circumstances of the particular case are sufficient, reasonably, to imply notice on the part of the municipality, or if in all the circumstances of the case it should have known of the defect in the sidewalk, it may not be heard to say that it had no specific notice. (City of St. Paul v. Hyslop, 174 F. 391, 98 C. C. A. 609; Town of Newcastle v. Grubbs, 171 Ind. 482, 86 N.E. 757; City of Hammond v. Jahnke, 178 Ind. 177, 99 N.E. 39; City of Newport v. Lewis, 155 Ky. 832, 160 S.W. 507; Lundy v. City of Sedalia, 162 Mo.App. 218, 144 S.W. 889; Billings v. City of Snohomish, 51 Wash. 135, 98 P. 107.)

ADAIR, Commissioner. Wm. E. Lee, Budge and Taylor, JJ., concur. Givens, J., Dissents.

OPINION

ADAIR, Commissioner

This action was brought by plaintiffs, husband and wife, for personal injuries sustained by the wife, Rosie Goodman. They allege that Mrs. Goodman fell as a result of the dangerous and unsafe condition of a certain cross-walk, at a place where a slab of cement was missing therefrom, and which defective condition had been permitted to continue through the negligence and carelessness of defendant. Motions for nonsuit and later for a directed verdict were interposed by defendant and were by the court overruled. Plaintiffs were required to elect upon which count of their complaint, that is, the one alleging the faulty construction of the cross-walk, or the one alleging failure to keep it in proper repair, they relied, and they committed themselves to the theory that the negligence on which they relied consisted of permitting the walk to become and remain unsafe, through failure to keep it in proper repair. The jury returned a verdict for plaintiffs, and from the judgment thereon, defendant prosecutes this appeal.

The specifications of error may be grouped and considered under two heads:

First, the insufficiency of the evidence; second, refusal to give the jury defendant's requested instructions Nos. 2 and 4.

The evidence discloses that defendant is a village of approximately four hundred and fifty inhabitants. The place where the accident occurred was at the point where Eighth Street and Center Street intersect. This cross-walk consisted of two strips of cement running parallel across the street from curb to curb, which strips were each about eighteen inches wide and provided footwalks for pedestrians. The space between these cement strips was filled with gravel. At the time the accident occurred the top coping of one of these strips of cement was missing, making a depression about eighteen inches wide and about three feet long. Its depth is disputed. Witnesses for plaintiff testified that the hole or depression thus created was from an inch and one-quarter to three inches in depth. and that the place where the coping had been removed was very rough, while witnesses for defendant testified that this depression was from seven-eighths of an inch to one and three-eighths of an inch in depth. There was a street lamp located a few feet from this defect, the light from which, on the night in question, entirely encircled this depression. Plaintiff, Rosie Goodman, who was sixty-seven years old, was walking with her daughter side by side, she being on the strip of walk in which this defect existed. The daughter testified that the shadow cast by their bodies obscured their vision so that they did not see this defect in the cross-walk. Rosie Goodman stepped into this declivity, stumbled and fell, and received injuries necessitating an operation, and resulting in serious bodily harm, pain and mental suffering, for which she and her husband are seeking to recover in this action.

This defective cross-walk was on one of the principal thoroughfares of the village, traveled generally by the public. It had been traversed by plaintiff who had resided at the same place for over four years, in going to and from town, and was traveled by other residents of the village. Notwithstanding this conceded fact there was not a scintilla of evidence adduced showing how long this defective condition had existed. Whether this top strip of cement was broken that day, or had existed in that condition for a long period of time is not disclosed by the testimony. There was no evidence even tending to show that the village trustees, or any other officers of the municipality ever had any actual knowledge of this defect. There was nothing in the entire record from which the court or jury could even infer that it had existed for a sufficient length of time to impute knowledge of its existence to the village authorities charged with and responsible for the duty of keeping the streets and sidewalks in a safe condition.

Ailshie, J., speaking for this court in the case of Miller v. The Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660, said:

"It is settled in this state that cities and villages incorporated under the general law of the state 'are liable in damages for a negligent discharge of the duty of keeping streets and alleys in a reasonably safe condition for use by travelers in the usual modes.' (Carson v. City of Genesee, 9 Idaho 244, 108 Am. St. 127, 74 P. 862; Moreton v. Village of St. Anthony, 9 Idaho 532, 75 P. 262.)

"Without negligence there can be no recovery. Negligence may arise out of a failure to act on actual and positive knowledge of a defect or danger in a street or sidewalk, or it may equally arise out of constructive knowledge on the part of the proper village or city authorities that a defect or danger exists. (2 Dillon Mun. Corp., sec. 1024; Elliott on Ev., sec. 2513.)"

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