Jackson v. City of St. Louis Park

• Decision Date: 15 September 1961
• Docket Number: 38144,Nos. 38143,s. 38143
• Citation: 261 Minn. 93,110 N.W.2d 510
• Parties: Elaine JACKSON et al., Appellants, v. CITY OF ST. LOUIS PARK, Respondent.
• Court: Minnesota Supreme Court

Page 510

110 N.W.2d 510

261 Minn. 93

Elaine JACKSON et al., Appellants, v. CITY OF ST. LOUIS PARK, Respondent.

Nos. 38143, 38144.

Supreme Court of Minnesota.

Sept. 15, 1961.

Syllabus by the Court

1. The fact that a water main under a city street is found bowed and broken does not give rise to an inference that there was faulty engineering in laying the pipes.

2. Whether a municipality had constructive notice of a dangerously defective condition in its streets by reason of previous breaks in the same area is a question of fact for the jury.

3. Whether water mains were broken by the movement of heavy equipment and whether a municipality was negligent in failing to regulate such traffic or to construct the street so as to accommodate it, Held issues for the jury's determination.

4. In charging the jury on contributory negligence, it was error not to instruct them that unless and until there are surrounding circumstances which, in the exercise of ordinary care, should alert him to the existence of concealed dangers, a motorist has a right to assume a highway which appears to be open for public use is safe for travel.

Leonard, Street & Deinard and Sidney Barrows and Arthur L. H. Street, Minneapolis, for appellants.

Freeman, Hoppe & Kennedy and David W. Nord, Minneapolis, for respondent.

OTIS, Justice.

The plaintiffs, husband and wife, have brought these actions to recover damages for personal injuries sustained by Elaine Jackson, and for consequential damages sustained by Maurice Jackson, as the result of an accident caused by a washout in one of defendant's streets. Following verdicts in favor of defendant, plaintiffs appeal from an order denying their motion for a new trial.

The evidence discloses that at the time of the accident, on June 2, 1958, at approximately 8 o'clock in the morning, Mrs. Jackson was driving her husband's car from her home on Pennsylvania Avenue in St. Louis Park in the company of two of her minor children. She had proceeded about a block and a half south on Pennsylvania Avenue, had turned left on Franklin Avenue, and had proceeded 50 to 100 feet in an easterly direction when her automobile suddenly dropped into a hole on Franklin Avenue and sank to a point where she was unable to open the doors. It is the contention of the plaintiffs that Mrs. Jackson and the children sustained injuries in the accident for which defendant is liable.

The record discloses that at approximately 7:35 o'clock that morning an inspector, employed by the consulting engineers in charge of installing sanitary sewers for the defendant, drove past the site of the accident and discovered that the area was flooded at the intersection of Pennsylvania and Franklin. He testified that water was bubbling up about a foot high east of the intersection, and that he surmised it was caused by a break in the water main. After reporting the matter to the police, he drove back, observed the Jackson car, and rescued Mrs. Jackson and the children from their predicament. Meanwhile, two of the defendant's employees drove to the nearest shutoff valve and turned off the water supply which was causing the eruption.

There was evidence that the flooded area was approximately 300 feet across and 6 to 8 inches deep at the height of the flooding, and it appears to be undisputed that the hole into which Mrs. Jackson's car was driven was at least 2 or 3 feet in depth.

It was the testimony of Mrs. Jackson that while there was a good deal of water on Franklin, this was not an uncommon phenomenon. The evidence indicated the intersection was low and the street surface was gravel and unfinished and lacked adequate drainage even under normal conditions. She also testified that it had rained over the Memorial Day weekend immediately prior to this occurrence, causing the streets in general to be wet. There was testimony from which the jury could find that the valve had been closed before Mrs. Jackson reached the area in question and that water was then no longer bubbling up through the highway as a warning to her of the danger which she encountered.

Various employees of the defendant described the damage which they found and the repairs which were necessary. It appears that the flooding resulted from a broken water pipe which had developed a crack 6 to 8 feet in length. Because of poor subsoil which consisted largely of peat, pilings 15 to 25 feet deep had been driven into the ground and planks 12 inches by 3 or 4 inches in dimension were laid across them at 8-foot intervals, on which 12-inch water pipes were laid, resting on blocks placed 4 feet apart. The mains were buried 7 or 8 feet below the surface of the roadway.

The parties conceded that in a two-block area between Pennsylvania and Nevada the water mains on Franklin Avenue had broken five times in January 1958, prior to this accident. A supervisor of the defendant's water department testified that in his opinion most of the prior breaks were caused by the settlement of the ground and by the movement of heavy equipment around that section during the time sewers were under construction. He stated that while it was difficult to determine exactly what caused the break, whether from settlement of the ground or from the weight of the equipment, they all occurred in the same general vicinity and no precautions had been taken by the defendant to control traffic to prevent a recurrence. The city manager of St. Louis Park also stated that nothing was done to prevent heavy equipment from using that part of the highway and, although the problem of water breaks gave the defendant a good deal of concern, no action had been taken to correct the situation. A foreman of the defendant's water and sewer department was also of the opinion that breaks in the water main resulted from the movement of heavy equipment on the streets during the time sewers were in the process of construction.

1. The court held as a matter of law that the plaintiffs had failed to demonstrate any defect in the manner in which the water mains were laid, and on the record before us we concur in this opinion. The fact that the pipes and planking were bowed and broken does not give rise to an inference that the engineering itself was unsound, in the absence of competent affirmative testimony that the methods followed were scientifically improper.

2. Over the objection of the plaintiffs, the court held that the defendant could not be found liable for any acts of negligence which preceded the eruption on Franklin Avenue on June 2, 1958, and confined the jury's consideration of defendant's negligence to the question of whether the city acted with reasonable care after notice of that particular break in the water main. In addition, the trial court refused to submit to the jury the questions of whether or not defendant was negligent in the construction and maintenance of the street itself and in permitting heavy equipment to travel the roadway after knowledge of the prior breaks in the water main.

We are of the opinion that it was error to restrict the jury's consideration of defendant's negligence to the period immediately following the discovery of the break on the morning of June 2, 1958. It is the general rule that in the absence of actual notice of a defect in the highway, it is a prerequisite to imposing liability on a municipality that the condition exist a sufficient...