Hendrix v. City of Twin Falls

• Decision Date: 26 January 1934
• Docket Number: 5997
• Citation: 54 Idaho 130,29 P.2d 352
• Parties: L. M. HENDRIX and LADINE HENDRIX, Husband and Wife, Respondents, v. CITY OF TWIN FALLS, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

29 P.2d 352

54 Idaho 130

L. M. HENDRIX and LADINE HENDRIX, Husband and Wife, Respondents, v. CITY OF TWIN FALLS, a Municipal Corporation, Appellant

No. 5997

Supreme Court of Idaho

January 26, 1934

MUNICIPAL CORPORATIONS-STREETS AND SIDEWALKS-DITCH WITHIN STREET-DUTIES AND LIABILITIES OF CITY-TRIAL-MOTION FOR NONSUIT-JUDGMENT NON OBSTANTE VEREDICTO.

1. City allowing construction of ditch in street could not evade duty to cover it or to protect people from danger by passing ordinance declaring ditch a nuisance.

2. Cities are liable for negligent discharge of duty of keeping streets in reasonably safe condition.

3. City's obligation to exercise reasonable care in maintenance of streets in reasonably safe condition extends to all obstructions placed therein, and to ditch constructed in street with acquiescence or consent of city.

4. In suit by parents for death of child by drowning in canal whether municipality exercised reasonable care and provided reasonable protection along canal and at bridges held for jury.

5. Children playing in street are entitled to benefit of city's duty to exercise reasonable care to keep streets in reasonably safe condition.

6. Where plaintiff has presented sufficient facts to justify reasonable juror in concluding thing charged was prime and moving cause, he need not exclude possibility, or even some probability that another cause or reason may have been true cause or reason for damage.

7. Motion for nonsuit admits truth of plaintiff's evidence and of every fact it tends to prove or which could be gathered from reasonable view thereof, and plaintiff is entitled to benefit of all inferences which jury would be justified in drawing.

8. Instruction directing verdict admits truth of adversary's evidence and every inference that may be legitimately drawn therefrom, and in effect instructs jury that there is no evidence to support claim of party against whom verdict is directed.

9. Motion for judgment notwithstanding verdict admits truth of adversary's evidence and every inference of fact which may be legitimately drawn therefrom, since such motion may be granted only if moving party is entitled to directed verdict (I. C. A., sec. 7-224).

10. In suit by parents against municipality for death of child drowned in irrigation canal in street, evidence held sufficient to show drowning where truth of plaintiffs' evidence and every inference of fact which might legitimately be drawn therefrom were admitted by defendant's motion for nonsuit, directed verdict, and judgment notwithstanding verdict. (I. C. A., sec. 7-224.)

APPEAL from the District Court of the Eleventh Judicial District of the State of Idaho, for Twin Falls County. Hon. William A Babcock, Judge.

Action for damages. Judgment for plaintiffs and respondents. Defendant City of Twin Falls appeals. Affirmed.

Judgment affirmed with costs to respondents.

George M. Paulson, for Appellant.

In order for liability to attach to a municipality for failure to keep its streets in a safe condition for travel it must appear that the injured party was using the street in which he was injured or the property which caused the injury in the usual and ordinary manner in which it was contemplated that the street or property would be used. (Talliaferro v Atchison, T. & S. F. Ry. Co., (Okl.) 160 P. 69; Beeson v. City of Los Angeles, (Cal.) 300 P. 993.)

A. J. James, for Respondents.

This court has already held that it was the duty of the City of Twin Falls to cover the very canal involved in this controversy, and if it is dangerous, to protect the people from such danger. (City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191.)

It is the primary and absolute duty of a city to keep its streets reasonably safe, even though the conditions complained of may have been caused or created by a third party. (Baillie v. City of Wallace, 24 Idaho 706, at 718, 135 P. 850; Powers v. Boise City, 22 Idaho 286, at 294, 125 P. 194.)

HOLDEN, J. Budge, C. J., and Morgan, Givens and Wernette, JJ., concur.

OPINION

HOLDEN, J.

In 1904, the Twin Falls Land and Water Company constructed over and across unclaimed, sage-brush land, as a part of an irrigation system in Twin Falls county, a lateral for the distribution of water for irrigation and other beneficial purposes. Shortly after the construction of the lateral a village government was established, and included within its limits a section of the lateral, and land on each side and fronting on the lateral was platted into town lots. Later, the village was organized into the City of Twin Falls, and in 1909, the said Company transferred the irrigation system to the Twin Falls Canal Company, and in the same year, one Murtaugh, through whose orchard the said lateral had been constructed, applied to the city council of said city for permission to change the location of said lateral and obtained the consent of the city to and did construct a lateral (commonly known and hereinafter referred to as canal No. 38), down through Eighth Avenue East, one of the streets of said village, and later of said city, and then the lateral constructed through said orchard was abandoned. Canal No. 38 is about ten feet wide and about five feet deep, with steep banks, and enters said city from the east, crosses Locust Street, which intersects Eighth Avenue East at right angles, forming the eastern boundary line of the city, and then extends on down through that avenue, in a westerly direction, a distance of four blocks to Blue Lakes Boulevard, which also intersects Eighth Avenue at right angles, continuing on through and beyond the city limits. After entering the city, the said canal flows on rapidly in a westerly direction, is open for the said distance of four blocks, where it appears to have been covered, and during irrigation seasons usually carries from 38 to 50 second-feet of water, and flows a stream of water from three to four feet deep. Between Locust Street and Blue Lakes Boulevard, foot and automobile bridges cross the canal. The side of one bridge had dropped from two to three feet below the level of the road, and a woven wire fence put up along the side of the bridge had worked loose at one corner, leaving a space of about three feet in diameter. A plank was gone from another bridge, about a foot wide and twelve feet long, making an open space the width and length of the plank, and about the full length of the bridge. In fact, all of the bridges, between Locust Street and Blue Lakes Boulevard, were in a very bad state of repair. In 1915, the city built a woven wire fence along the north and south banks of canal No. 38, but did not keep the fences in good repair. On the north side of the canal, between the north bank and the property line, a concrete sidewalk was constructed, and on the south side of the canal, between the south bank and the curb line, is a space about 22 feet wide for the use of automobiles and other vehicles, extending east and west from Locust Street to Blue Lakes Boulevard, and then still further south, between the curb line and property line of Eighth Avenue East, is a concrete sidewalk for the use of pedestrians. In places, the canal banks had caved in and there were openings extending beyond the fence into the traveled portion of the avenue, and in places the woven wire fence had fallen to the ground. These conditions had existed for a long while prior to the time the child was drowned in canal No. 38.

It is alleged and admitted that the section between Locust Street and Blue Lakes Boulevard is thickly populated.

March 17, 1931, respondent L. M. Hendrix and wife, respondent Ladine Hendrix, with their infant son, Ralph Monroe Hendrix, slightly more than three years old, moved to the south side of Eighth Avenue East, between Locust Street and Blue Lakes Boulevard, facing the south bank of said canal No. 38. At about 12 o'clock, noon, April 18, 1931, the boy asked permission of his mother to go out in the yard and pick dandelions. He went out the back, or south, door of the house, and to the west side. In about 5 minutes afterward, his mother went outside to look for him, failing to find him, she started toward Blue Lakes Boulevard, looking in yards as she passed along, and noticing cars stopping and people congregating at Blue Lakes Boulevard, she hastened there and found that his body had just been taken from canal No. 38. It appears that approximately 15 minutes had elapsed from the time she saw him leave the house to the time she saw his body at the Boulevard. The child was seen, after he left the house, on the north side of the canal, about a block and a half distant from the Hendrix house, and to the west, or towards Blue Lakes Boulevard, and was asked where he was going, and he answered that he was going to pick dandelions.

February 4, 1932, this action was commenced to recover damages. It was tried at the October, 1932, term of the district court for Twin Falls county. When plaintiffs and respondents rested, the defendant city moved for judgment of nonsuit, which was denied. At the close of all the evidence, the city moved that the court instruct the jury to return a verdict in its favor, which motion was also denied. The jury returned a verdict in favor of the respondents, after...