Horn v. Boise City Canal Co.

• Decision Date: 20 May 1901
• Parties: HORN v. BOISE CITY CANAL COMPANY
• Court: Idaho Supreme Court

65 P. 145

7 Idaho 640

HORN v. BOISE CITY CANAL COMPANY

Supreme Court of Idaho

May 20, 1901

MEASURE OF DAMAGES-PERSONAL INJURIES-DISCRETION OF JURY.-In case of personal injury resulting from carelessness, mental and physical suffering are elements of damage, the amount of which must be left to the good sense and sound judgment of the jury, whose verdict should not be disturbed except in case of a clear abuse of discretion.

NEGLIGENCE-PROPERTY ABUTTING ON HIGHWAY-SECURITY TO THE PUBLIC.-The owner of a ditch which is upon a public street in a city is under obligation to keep it in such condition as the safety of persons traveling upon the street, and exercising reasonable care, to avoid danger, demand, and the failure to keep same in such safe condition is negligence, and renders the owner liable to damages for personal injuries resulting from such condition, in case the injured party is not guilty of contributory negligence.

(Syllabus by the court.) [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

APPEAL from District Court, Ada County.

Affirmed. Costs awarded to the respondents.

Joseph W. Huston, for Appellant.

It is contended by the appellant that upon the evidence of the plaintiff, the defendant's motion for a nonsuit should have been granted. There was no dispute as to the facts and under such conditions, negligence, involving the cognate proposition of contributory negligence, becomes a question for the court. (Pool v. Southern P. Co., 20 Utah 210, 58 P. 326; Wordlaw v. Railroad Co. (Cal.), 42 P. 1075; Abbott v. Chicago etc. Ry. Co., 60 Minn. 482, 16 N.W. 266; Johnson v. Rio Grande etc. Ry. Co., 19 Utah 77, 57 P. 17.) The evidence in this case fails to establish: 1. That the damage or injury claimed by the plaintiff if any was sustained by the plaintiffs, was attributable to any negligence of the defendant corporation as the proximate cause thereof. (La Londe v. Peake, 82 Minn. 124, 84 N.W. 726, and cases cited; Farmers' High Line etc. Co. v. Westlake, 23 Colo. 26, 46 P. 134; Long on Irrigation, sec. 71.) 2. Appellant contends that the evidence fails to show any negligence on the part of defendant. (Thomas v. Pocatello Power etc. Co., ante, p. 435, 63 P. 595.)

C. C. Cavanah, for Respondents.

The operating of a water ditch across, upon and along a street in a populous city in an open and exposed condition without any protection or notice or warning to the traveling public is a public nuisance. (Idaho Rev. Stats., secs. 3620, 4529; Boise City v. Boise Rapid Transit Co., 6 Idaho 779, 59 P. 716; City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809; Marks v. Weinstock, 121 Cal. 53, 53 P. 362; Elliott on Roads and Streets, old ed., 483, 487; Elliott on Roads and Streets, new ed., secs. 645, 650; Bond v. Smith, 44 Hun, 219, 222; Parker v. Marcon, 39 Ga. 725, 729, 99 Am. Dec. 486.) The defendant, Boise City Canal Company, being the author and continuer of a public nuisance in and upon one of the principal traveled streets of Boise City, is liable under the law for injuries sustained by a traveler exercising ordinary care and prudence when traveling upon the highway. (2 Dillon on Municipal Corporations, new ed., secs. 1032, 1034; Elliott on Roads and Streets, new ed., sec. 711; Buswell on Personal Injuries, secs. 187, 189; 1 Thompson on Negligence, 354; 2 Shearman and Redfield on Negligence, sce. 715; Carroll v. Centralia Water Co., 5 Wash. 613, 32 P. 609, 33 P. 431; City of Denver v. Solomon, 2 Colo. App. 534, 31 P. 507; Platte etc. Min. Co. v. Dowell, 17 Colo. 376, 30 P. 68; Sexton v. Zett, 44 N.Y. 430; Beck v. Carter, 68 N.Y. 283, 23 Am. Rep. 175, and note; Clifford v. Dam, 81 N.Y. 52; Barry v. Terkildsen, 72 Cal. 254, 1 Am. St. Rep. 55, 13 P. 657, Tomle v. Hampton, 129 Ill. 379, 21 N.E. 800; Graves v. Thomas, 95 Ind. 364, 48 Am. Rep. 727; Denver etc. Co. v. Robbins, 2 Colo. App. 313, 30 P. 261; Shearman and Redfield on Negligence, sec. 715.) We contend that before a person can be charged with contributory negligence, it must appear from the whole testimony in the case, that he, at the time of the accident, was not exercising ordinary care and prudence. Ordinary care depends upon the circumstances of each particular case and is such care as a person of ordinary prudence would exercise under similar circumstances. (Cronin v. Village etc., 50 Wis. 375, 7 N.W. 249; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Cannon v. Lewis, 18 Mont. 402, 45 P. 572.) It would seem from the construction placed upon the testimony by the learned counsel for defendant that the law requires a traveler upon a street in a populous city to be on the lookout for obstructions, and to assume that the public street or walk is in a dangerous condition. We answer that the rule is just the reverse, because a traveler upon a public highway in a city has a right to assume the safety of the highway, and is not bound to be on the lookout for danger therein. (McGuire v. Spence, 91 N.Y. 303, 43 Am. Rep. 668; Weed v. City of Boston, 76 N.Y. 329; Shidt v. Dreyfuse Co., 50 La. Ann. 837, 23 South, 837; Thompson v. Inhabitants of Bridgewater, 7 Pick. 188.) Where the plaintiff, assuming that a sidewalk was safe and knowing nothing to the contrary, fell into a hole in the sidewalk from which the cover had been removed, she was held not guilty of contributory negligence. (Kelley v. Blackstone, 147 Mass. 448, 9 Am. St. Rep. 730, 18 N.E. 217; Crites v. City of New Richmond, 98 Wis. 55, 73 N; W. 322; Brush etc. Co. v. Kelley, 126 Ind. 220, 25 N.E. 812; Jennings v. Van Schaick, 108 N.Y. 530, 2 Am. St. Rep. 459, 15 N.E. 424.) Unless the evidence clearly discloses that the plaintiffs did not exercise ordinary care at the time of the accident, then the question of contributory negligence becomes one of fact to be submitted to the jury for determination. (Buswell on Personal Injuries, sec. 138; Johnson v. Thomas, (Cal.), 43 P. 578; Smith v. Rio Grande etc. Ry. Co., 9 Utah 369, 33 P. 626; Linden v. Anchor Min. Co., 20 Utah 134, 58 P. 355; James v. San Ive etc. Ry. Co., 55 Cal. 593; Buchel v. Gray Bros., 115 Cal. 421, 47 P. 112; City of Knoxville v. Cox, 103 Tenn. 368, 53 S.W. 734; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679; Richmond etc. Co. v. Powers, 149 U.S. 43, 13 S.Ct. 748; 2 Thompson on Negligence, 1178; Wharton on Negligence, sec. 420.)

OPINION

PER CURIAM

This action was commenced in the district court of Ada county to recover damages for personal injuries occasioned by the respondent Ardella Horn, wife of the respondent Jake Horn, by walking into a ditch owned by the appellant, the Boise City Canal Company, running through the city of Boise for a large portion of the way along the north side of Grove street, in said city, but upon the highway. The accident occurred between Eighth and Ninth streets. The respondents were traveling along said highway, returning in a cab from the depot to the Overland Hotel, where they were stopping. After leaving Ninth street, going easterly toward Eighth street, on Grove, one of the cab horses fell; whereupon the driver requested the respondent Mrs. Horn to step out of the cab for fear of an accident, as the horse might, in its struggles to get up, cause the cab to lurch, and thus injure said respondent. The evidence shows that respondent inquired as to where the sidewalk could be found, to which her husband, respondent Jake Horn, replied, "Over there." There were a number of are lights along the street, and the ground upon this occasion was covered with snow. The respondent Ardella Horn started to the north side of the street, in order to get upon the sidewalk. In approaching the ditch it appeared dark, snow being on either side, and said respondent naturally concluded that the ditch was the sidewalk, and stepped into it; the water being filled with slush ice, running rapidly, and about two feet eight inches in depth. Said respondent lost her footing, sank once or twice, and attracted her husband by her screams, who rescued her from the ditch. Respondent was naturally chilled by her contact with said ice water, and suffered considerably from nervousness during that night, and for some time afterward suffered more or less physical pain from her ankle being sprained and one of her wrists injured in her fall. The evidence does not show that said respondent lost any time, or was so disabled as to be disqualified from performing her ordinary domestic duties for any length of time, and no actual damage, by way of expense for medical service, was...