Higgins v. City of Boulder, 14560.

• Decision Date: 22 January 1940
• Docket Number: 14560.
• Citation: 98 P.2d 996,105 Colo. 395
• Parties: HIGGINS v. CITY OF BOULDER.
• Court: Colorado Supreme Court

98 P.2d 996

105 Colo. 395

HIGGINS v. CITY OF BOULDER.

No. 14560.

Supreme Court of Colorado

January 22, 1940

Rehearing Denied Feb. 13, 1940.

In Department.

Error to District Court, Boulder County; Claude C. Coffin, Judge.

Action by Clara C. Higgins against the City of Boulder, a municipal corporation, for injuries caused by falling over an obstruction on sidewalk. To review a judgment for defendant following setting aside verdict for plaintiff, the plaintiff brings error.

Judgment reversed, with directions.

Carl W. Berueffy, of Boulder, for plaintiff in error.

Frank L. Moorhead, of Boulder, for defendant in error.

BURKE Justice.

These parties are hereinafter referred to as plaintiff and the city, respectively.

Plaintiff had a verdict in the sum of $4,500 for damages for personal injuries caused by falling over an obstruction on a sidewalk. On motion of the city the verdict was set aside and judgment entered for it. To review that judgment plaintiff prosecutes this writ. The only questions which, under the assignments and in the light of the argument, require consideration are Was there sufficient evidence of the nature of the obstruction, and notice thereof to the city, to go to the jury?

Around the courthouse square in Boulder is a cement sidewalk nine feet wide with no curb on the inner side. On that side, and near a small shrub or tree, stood a wire bench approximately six feet long, thirty inches wide, and eighteen inches high. About 7 P. M. on January 5, 1938 plaintiff, a woman of 76 years of age, walking rapidly along this sidewalk, collided with the bench and received the injuries complained of. There is evidence that this portion of the walk was 'dark', and that this bench, while sometimes on the courthouse lawn, had generally been in the position above mentioned for a year or more.

The duty of the city was to maintain this sidewalk in a reasonably safe condition for one using it in a proper manner. 43 C.J. sec. 1785 p. 998. That duty extended to the entire sidewalk. Id. sec. 1790 p. 1007; 7 McQuillin Municipal Corp. sec. 2931 p. 73; Andrews v. City of White Hall, 184 Ill.App. 298, 301.

While some authorities do not adhere strictly to that portion of the rule last mentioned, that it is applicable in this jurisdiction, under the facts here apparent, seems clear. City of Denver v. Stein, 25 Colo. 125, 127, 53 P 283.

Whether an obstruction not a nuisance per se is such in fact is generally for the jury. 43 C.J. sec. 2047, p. 1287.

Negligence is generally for the jury, and always so when the measure of duty is reasonable care. Williams v. Sleepy Hollow Min. Co., 37 Colo. 62, 69, 86 P. 337, 7 L.R.A.N.S., 1170, 11 Ann.Cas. 111; Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460, Ann.Cas.1914B, 29.

We conclude, therefore, that, assuming notice, the question here at issue was for the jury.

Plaintiff relies upon constructive notice. This courthouse block was the central one in the city. If its officers were ignorant of this obstruction, but in the exercise of ordinary diligence should have known of it, the city had notice. City of Boulder v. Niles, 9 Colo. 415, 421, 12 P. 632; 7 McQuillin Municipal Corp. secs. 3002, 3003, pp. 237-240.

Since the question of constructive notice depends upon the facts and circumstances...