Herndon v. Salt Lake City

• Decision Date: 23 April 1908
• Docket Number: 1909
• Citation: 34 Utah 65,95 P. 646
• Court: Utah Supreme Court
• Parties: HERNDON v. SALT LAKE CITY

95 P. 646

34 Utah 65

HERNDON v. SALT LAKE CITY

No. 1909

Supreme Court of Utah

April 23, 1908

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by George L. Herndon against Salt Lake City. From a judgment for plaintiff, defendant appeals.

REVERSED, AND NEW TRIAL GRANTED.

Ogden Hiles and H. J. Dininny for appellant.

APPELLANT'S POINTS.

A city may pile stumps or rocks on, or leave the unwrought portion of a street as it was by nature, and if the traveled portion is good, it will not be liable for damages sustained by one who goes off it. (Perkins v. Fayette, 68 Me. 152.)

A municipality is not bound to keep and maintain in reasonably safe condition for travel the full located width of the highway. (Williams on Municipal Torts, p. 134, sec. 86, p 142, sec. 90; Wellington v. Gregson, 31 Kan. 99, 1 P. 253; Morse v. Belfast, 77 Me. 45; Bassett v St. Joe, 53 Mo. 303; Trix v. Kansas, 84 Mo 642; Prideaux v. Mineral Point, 43 Wis. 523; Austin v. Prix, 72 Tex. 400; Kossman v. St. Louis, 153 Mo. 293; Rymer v. Menasha [Wis.] 73 N.W. 41; Fullam v. Muscatine [Iowa], 30 N.W. 861-2.)

When the municipality has prepared and maintained a way of sufficient width, smooth and convenient for travel, its duty in this respect has been accomplished. (Morse v. Belfast, supra; Sale v. Turnpike, 147 Ind. 324, 46 N.E. 669; Mitchell v. Tell City [Ind.], 81 N.E. 594.)

If a traveler without necessity (caused by the imperfect or dangerous condition of the traveled road), or for his own convenience or pleasure, deviates from the traveled track, it being in good condition, and in so doing meets with an accident from some cause outside such track, the municipality will not be liable for the resulting damage. (2 Thompson on Negligence, p. 769; 5 Thompson on Negligence, sec. 6011; Kelly v. Fond du Lac, 31 Wis. 186; Sykes v. Pawlet, 43 Vt. 446; Rice v. Montpelier, 19 Vt. 470; Nelson v. Spokane, 87 P. 1048; Goeltz v. Ashland, 44 N.W. 770, and cases cited; Brown v. Glasgow, 57 Mo. 156; Craig v. Sedalia, 63 Mo. 417; Guthrie v. Swan, 41 P. 87; King v. Harley, 85 Me. 523; Ranke v. Smith, 63 Ill.App. 522; Marshall v. Ipswich, 100 Mass. 523; Keyes v. Marcellus, 50 Mich. 439; Stricker v. Reedsburg, 77 N.W. 897.)

When a plaintiff has omitted proper precautions in the equipment of his team, even when the road is bad, the question of his negligence in regard to such equipment, is for the jury. (Allen v. Hancock, 16 Vt. 231; Patchen v. Walton, 17 A.D. 158.)

If a defect in the carriage contributed jointly with a defect in the street to produce the injury to plaintiff, he cannot recover. (Farrar v. Green, 32 Me. 574; Moon v. Abbott, 32 Me. 46; Anderson v. Bath, 42 Me. 346.)

A city is not liable for not erecting a barrier where the absence of it is not proximate cause of the accident. (Judd v. Claremont, 66 N.H. 416; Patchen v. Walter, 45 N.Y.S. 145.)

A city is not liable for failure to maintain barriers when the horse leaves a traveled road which is in good condition, and wide enough to drive upon with safety, through any cause for which the municipality is not responsible. (Bell v. Wayne, 123 Mich. 386, 82 N.W. 216; Springs v. St. Clair, 56 N.W. 18.)

The mere absence of a barrier upon the side of a highway where there is a perpendicular descent when the road is hard and smooth is not enough to charge negligence. (Glaker v. Helm, 82 Hun 311; Lane v. Hancock, 142 N.Y. 510; Miller v. Hebron, 39 N.Y.S. 381.)

A city is not liable for negligence for not erecting a barrier when the place to be guarded is twenty-five feet or more from the traveled part of the road. (Hannibal v. Campbell, 86 F. 297; Marshall v. Ipswich, 100 Mass. 523; McHugh v. St. Paul, 67 Minn. 441; Murphy v. Gloucester, 105 Mass. 470.)

James Ingebretzen and A. L. Happaugh for respondent.

RESPONDENT'S POINTS.

The following authorities support the proposition that it is the city's duty to keep the entire width of a public street in a reasonably safe condition for public travel by night as well as by day. (Tucker v. Salt Lake City, 10 Utah 173; Scott v. Provo, 14 Utah 31; City v. Swisher, 85 P. 1110; Stafford v. City, 64 Iowa 251; Crystal v. City, 65 Iowa 502; Niblett v. Nashville, 59 Tenn. 684; 15 A. & E. Ency of Law, 454. 1 Thompson on Negligence, Vol. 5, secs. 6005-6012. Prideaux v. Mineral Point, 43 Wis. 513. Elliott on Roads and Streets, page 455.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action for damages for personal injuries claimed to have been caused by an alleged defect in one of the streets of Salt Lake City. The negligent acts complained of are alleged to be substantially as follows: (1) Negligence in maintaining a "dugway" in the intersection of Twelfth East and Second South streets in such manner as to cause an embankment to form from three to five feet in height, which was allowed to remain diagonally across the intersection of said streets; (2) the failure of the city to construct and maintain a railing or barrier along the traveled part of said intersection and said embankment "to prevent persons and vehicles on said traveled part from passing over said bank," and (3) the failure of the city to place and maintain a light or other signal at or near said embankment to warn persons using the street of the existence thereof. Briefly stated, the facts developed at the trial were substantially as follows: Second South street runs east and west, and Twelfth East street runs north and south. These two streets intersect or cross each other in the eastern part of the city, and within a block or two from the easterly limits of the city. At the point where these two streets meet and cross is a natural bluff running in a northeasterly and southwesterly direction. This bluff is of considerable height, and rises abruptly forming a sort of bench. The natural topography of the land both above and below this bluff is comparatively level, inclining somewhat to the west. These two streets meeting, as they do, at the point where this bluff parts the lower from the upper level, made both streets practically impassable in the natural state of the ground. The bluff was worked down somewhat, and in doing so it left a somewhat steep incline to the north on Twelfth East street, and to the west on Second South street. Both of these streets are 132 feet wide between lot lines, and have been platted and surveyed for many years. In order to make the streets passable the city made a roadway on the east side of Twelfth East street going up the hill to the south, and also one on the west side of this street. On Second South street a roadway was prepared on the north side of that street, and in doing so the south side of this roadway was cut down somewhat, and it is this that is called the "dugway" in the complaint, and the raise caused by this cut is called the "embankment" or "bank." This work left a portion of the centers of both streets in an unfit condition for travel, the principal part of which fell within the intersection, and was lengthened out somewhat to the north and west of the intersection, so that this unwrought portion of these two streets at the point aforesaid resembled somewhat the form of a boot or stocking tapering to a point at both extremities. By reason of the declivity at the point in question the city, in making a passage or driveway on the north side of Second South street going east, caused the embankment or bank, as stated above, to be formed along the south margin of the traveled portion of the street, which, the testimony shows, was from two to three feet high, descending somewhat abruptly from the top of the embankment to the worked and traveled portion of the street. These drive or passage ways around this unworked portion, as the testimony discloses, were all the way from twenty to thirty feet in width, and all were reasonably smooth and passable for teams and vehicles. It also appears that the travel at that point was not very heavy, and that the city both to the south and east of the intersection was somewhat sparsely settled. In view of the foregoing, in going either up or down the hill, a person driving over this intersection, in order to continue on in the driveway prepared by the city, would have to drive either to the right or left in passing around the unworked portion lying in the center of the intersection of these two streets. The unworked portion had no well-defined banks along its upper or eastern and southern margin, but on the lower part there was more or less of a bank, as above stated. In the center of the intersection, and upon the unworked portion thereof, stood an electric light pole with an arc lamp upon its top. The pole and light were the same as those used for lighting all parts of the city. At the time of the accident there were some weeds on the unworked part of the intersection which had grown up during the preceding summer and fall. The electric light was lit, but made a dim light, as some of the witnesses described it. Under the conditions above described, on October 31, 1905, the respondent, at about 6:15 o'clock p. m., in making the turn west on the intersection of Twelfth East street to drive west on Second South street with a team and heavy carriage, departed from the traveled part of the street or intersection and drove diagonally across the unworked part, and in doing so one of the front wheels of the carriage went over the embankment forming the north margin of the unworked part of the street, and threw him from the seat, and he fell to the driveway below and was injured. Just before driving north he had driven south over this intersection, but, as the night was dark, he said he had not noticed the actual condition of the street, and in going back, in order to relieve...