Hoffer v. The City of Lewiston

• Decision Date: 03 December 1938
• Docket Number: 6616
• Citation: 59 Idaho 538,85 P.2d 238
• Parties: D. D. HOFFER and ETHEL HOFFER, His Wife, Respondents, v. THE CITY OF LEWISTON, IDAHO, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

85 P.2d 238

59 Idaho 538

D. D. HOFFER and ETHEL HOFFER, His Wife, Respondents, v. THE CITY OF LEWISTON, IDAHO, a Municipal Corporation, Appellant

No. 6616

Supreme Court of Idaho

December 3, 1938

MUNICIPAL CORPORATIONS-SPECIAL CHARTERS - AMENDMENTS - TAXPAYER AS JUROR-DEFECTIVE SIDEWALK-INJURY TO PEDESTRIAN-NEGLIGENCE-EVIDENCE, SUFFICIENCY OF.

1. General acts of legislature do not ordinarily repeal the provisions of charters granted to municipal corporations unless such repeal is in express language or by necessary implication.

2. A general law relating to municipal affairs of local concern to government of cities will not automatically amend or alter special charters under which cities have been organized prior to the adoption of the Constitution. (Const., art. 11, sec 2; art. 12, sec. 1.)

3. The amendment to charter of City of Lewiston, providing that no general law of the state nor any amendment that might be made thereto should repeal, alter or amend the charter unless the act clearly expressed such intention by reference to the charter by title, was simply a recognition of a rule of statutory construction which existed prior thereto. (Sess Laws 1937, p. 446, sec. 233.)

4. In action against City of Lewiston, the sustaining of challenge to juror because he was a taxpayer of the city was erroneous in view of fact that the general act providing that challenge for cause might be taken on such ground was not applicable to an action to which City of Lewiston was a party, because of a contrary charter provision. (I. C. A., sec. 7-203, subd. 8 as amended by Sess. Laws 1933, chap. 61; Sess. Laws 1907, pp. 444, 446, secs. 227, 233; Const., art. 11, sec. 2; art. 12, sec. 1.)

5. In action against the City of Lewiston, the court's erroneous sustaining of challenge to juror on ground that he was taxpayer of the city was not prejudicial, since city had no vested right to have any particular juror try its case. (I. C. A., sec. 7-203, subd. 8, as amended by Sess. Laws, 1933, chap. 61; Sess. Laws 1907, pp. 444, 446, secs. 227, 223; Const., art. 11, sec. 2; art. 12, sec. 1.)

6. A letter written by pedestrian who was injured when she fell on sidewalk of City of Lewiston, notifying mayor and city council of the accident, did not constitute evidence of negligence, or of the manner of the happening of the accident.

7. In order to hold City of Lewiston liable for injuries to pedestrian who fell on sidewalk, pedestrian was required to present substantial evidence that defective condition of the sidewalk was the direct and proximate cause of pedestrian's fall.

8. Possibilities are not enough to establish negligence, and negligence, in order to support a verdict based thereon, must be established at least by probabilities.

9. Evidence indicating that pedestrian fell in the proximity of a crack in the sidewalk, in City of Lewiston, which did not affirmatively show that the fall resulted from pedestrian stepping in or catching her foot on the crack, was insufficient to sustain judgment for the pedestrian against the city.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. Reversed and new trial granted.

Judgment reversed and a new trial granted. No costs awarded.

John W. Cramer, for Appellant.

When the trial court errs in the application of law to the facts the judgment must be reversed. (Koch v. Glenn, 53 Idaho 761, 27 P.2d 870.)

A municipal corporation is not an insurer against accidents upon its streets and sidewalks. (Miller v. Village of Mullan, 17 Idaho 28, 104 P. 660, 18 Ann. Cas. 1107; Hermandson v. City of Canton, 57 S.D. 267, 231 N.W. 935.)

Cities are not liable for defects in streets but are liable only for the negligent discharge of the duty of keeping streets in a reasonably safe condition. (Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789; Hendrix v. City of Twin Falls, 54 Idaho 130, 29 P.2d 352.)

On suing the city for tort the plaintiff must show that defendant's breach of duty toward plaintiff caused the damage complained of. (Moore v. City of Nampa, 18 F.2d 860; 276 U.S. 536, 48 S.Ct. 340, 72 L.Ed. 688.)

Butler & Madden, for Respondents.

When the venireman could have been excused by peremptory challenges, which were waived, the court could not have erred in sustaining a challenge for cause. (State v. Hoagland, 39 Idaho 405, 421, 228 P. 314.)

No party is entitled to any particular juryman unless it is affirmatively shown that other jurors which the litigant was compelled to accept were prejudiced. (Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 323, 282 P. 72; State v. Hoagland, supra.)

A municipality may not, as a matter of law, be relieved from liability for a defect where it is such that reasonably prudent men would anticipate it might cause injury to some pedestrian exercising due care. (Douglas v. City of Moscow, 50 Idaho 104, 108, 294 P. 334.)

The court could not say, as a matter of law, that this defect was not actionable. This was a question of fact to be determined by the jury. (Goodman v. Village of McCammon, 42 Idaho 696, 703, 247 P. 789.)

AILSHIE, J. Holden, C. J., Morgan, Budge and Givens, JJ., concur.

OPINION

AILSHIE, J.

This action was brought to recover damages against appellant city, resulting from its negligence in not repairing a defective condition of one of its sidewalks.

At the time of the trial respondent Ethel Hoffer had been a resident of the City of Lewiston for 36 years. September 17, 1935, she and her daughter left their home to walk down town from Normal Hill. They used the Sixth Street steps, "that being the nearest and most direct pedestrian way." This walk is constructed of concrete steps and slants or ramps from top to bottom, one of them being a very long ramp. About two-thirds of the way down the hill from the top of the steps, and right below the long ramp, respondent fell. In falling she "skinned both shins from her ankles to her knees," and sustained other injuries to her feet, knee, hip and back.

September 23, 1935, respondent wrote a letter to the members of the city council of Lewiston informing them of her accident and calling attention to the condition of the Sixth Street steps. The letter reads as follows:

"To the Mayor & Members of City Council.

"Want to inform you of the serious accident which I had, last Tues the 17th by falling, caused by a broken step on the Cement steps, going down 6th St.

"I came near breaking both legs, also injuring my back and right hip. Dr said I was lucky--serious as it is, not to have broken both legs.

"I wish to inform you of the Condition of these steps, hope you will give this your earliest attention, to avoid future accidents to others using these steps, which are in constant use by many--

"Yours Respectfully,

"MRS. D. D. HOFFER

"619--6th St.

"Lewiston Idaho"

September 7, 1937, claim for damages was filed with the mayor and city council by respondents, itemizing the amounts for medical service and other expenses in the sum of $ 5,499.50. September 17th following, complaint was filed in the lower court, seeking judgment for damages in the same amount. The cause was tried to the court and a jury and a verdict was returned for plaintiffs in the sum of $ 400. From judgment on the verdict defendant appeals.

Testimony in regard to the sidewalk in question may be briefly stated as follows: Mrs. Lequime had used the sidewalk for about ten years, for once a week at least; she recalled the crack in first step, an inch or two wide; there was no warning sign to indicate defect in walk. She believed walk should be repaired but "didn't think much about it."

Mr. Hoffer, husband of Ethel Hoffer, and one of respondents, used the walk twice a week. Walk was in broken condition at least a couple months before September, 1935. When asked if he considered it seriously dangerous at the time he replied: "Well, if I am honest with you, I never gave it a thought." Mr. Howe, another resident of the city, used the steps "some days four times a day." He didn't notice any serious defects in summer of 1935.

The city clerk testified to the construction of the steps, also about keeping informed as to condition of streets and action taken on complaints from citizens. The city engineer's testimony related to the employment of ten men regularly on streets and sidewalks; that every month an inspection of the steps was made; that there were thousands of small defects all over town like those in the steps that they didn't figure of any consequence or hazard to the public; that he didn't remember any defects in 1935 that needed repair; that sidewalk was found to be in a condition safe for pedestrian traffic. The assistant city engineer, after receiving complaint from respondent, went over the steps with the assistant city foreman, Mr. Ruple, and the only defects they noticed were minor; that they were repaired; that they had never received any complaint as to the condition of the Sixth Street steps. Mr. Ruple testified that in making the inspection of the steps they didn't find anything that they "considered bad." The general foreman of the city, Mr. Schenk, inspected the steps in the summer of 1935, either the last week in July or first of August, and found a defective condition in walk, about a 1/4 or 1/2 inch. "There was a check across the walk that would be a defect, otherwise not."

Appellant assigns the action of the court in sustaining challenge to the juror Akins as error. When called to the jury box and examined, he stated he was a taxpayer of the City of Lewiston. Plaintiff's counsel thereupon challenged him under the provisions of subd. 8 of sec. 7-203, I....