Johnson v. City of Fargo

• Decision Date: 05 June 1906
• Court: North Dakota Supreme Court

108 N.W. 243

15 N.D. 525

CHARLES N. JOHNSON v. CITY OF FARGO

Supreme Court of North Dakota

June 5, 1906

Appeal from District Court, Cass county; Pollock, J.

Action by Charles N. Johnson against the city of Fargo. Judgment for plaintiff, and defendant appeals.

Affirmed.

Seth Newman, for appellant.

No proper claim was presented to the mayor and council. It alleged the locus in quo to be "about 30 feet" from a point, and testimony shows it was about 15 feet. The object of the notice is to protect the municipality, and enable it to make proper investigation. Trost v. The City of Casselton, 8 N.D. 534, 79 N.W. 1071.

Plaintiff was guilty of contributory negligence, and defendant's motion for a directed verdict should have been granted. Indianapolis Ry. Co. v. Zaring, 71 N.E. 270; Indianapolis Ry. Co. v. Marschke, 70 N.E. 494; Indianapolis Ry. Co. v. Tenner, 67 N.E. 1044; Patterson v. Hemenway et al., 19 N.E. 15; Pinnix v. Durham, 41 S.E. 932; Ill. Cen. R. R. Co. v Dick, 15 S.W. 655; Massey v. Seller, 77 P. 397; Cook v. Atlanta, 19 S.E. 987; McLaury v. The City of McGregor, 7 N.W. 91; Alline v. City of LeMars, 33 N.W. 160; Tuffree v. State Center, 11 N.W. 1; Cressey v. Town of Postville, 12 N.W 757; Yahn v. City of Ottumwa, 15 N.W. 257; Hutchins v. Priestley Express Wagon Co., 28 N.W. 85; Bedell v. Berkey, 43 N.W. 308; Schofield v. Ch M. & St. P. Ry. Co., 114 U.S. 615 S. C., 29 L.Ed. 224; C. R. I. & P. Ry. Co. v. Houston, 95 U.S. 697 (S C.), 24 L.Ed. 542; Klutt v. Phil. R. Co., 133 F. 1003; Claus v. N. Steamship Co., 89 F. 646; Moore v. Richmond, 8 S.E. 387; Donaldson v. M. & St. P. Ry. Co., 21 Minn. 293; Brown v. M. & St. P. Ry. Co., 22 Minn. 165; Smith v. Minn. & St. L. Ry. Co., 26 Minn. 419; Johnson v. Ramberg, 51 N.W. 1043; Sparks v. Serbrecht, 45 N.Y. 993; O'Dwyer v. O'Brien, 43 N.Y. 815; Bauman v. Met. St. Ry., 47 N.Y. 1094; Fuller v. Dedrich, 54 N.Y. 593; Hilsenbeck v. Guhring, 131 N.Y. 674, 30 N.E. 580; Whalen v. Citizens' Gas. Co., 45 N.E. 363; Hausman v. City of Madison, 55 N.W. 167; Hutchins v. Priestley Express Wagon Co., 28 N.W. 86.

There is no proof of negligence on the part of the city. It exercises reasonable care when it repairs defects in its walks within a reasonable time after notice, actual or constructive. Plaintiff's conclusion that he caught his foot in the obstruction, from an examination the next day, does not carry the presumption that it was there the day before. A presumption is not retrospective. Jarvis v. Vanderford, 21 S.E. 302; Martin v. Curtis, 31 A. 296; Singler v. Murphy, 77 N.W. 577; Brentner v. Chicago, M. & St. P. Ry. Co., 12 N.W. 615; State v. Hubbard, 15 N.W. 287; Hoyt v. City of Des Moines, 41 N.W. 63; Blank v. Township of Lavonia, 44 N.W. 157.

The exceptions to the rule are cases where from the notice of the defect, it must have existed long previous. Miller v. N. P. R. Co., 30 N.W. 892; City of Bloomington v. Osterle, 28 N.E. 1068; Mixter v. Imp. Coal Co., 25 A. 587; Johnson v. City of St. Paul, 54 N.W. 735.

Barnett & Richardson, for respondents.

Notice to the mayor and council was sufficient. Robin v. Bartlett, 13 A. 645; Trost v. City of Casselton, 8 N.D. 534; Cowan v. Inhabitants, etc., 56 A. 901; Fopper v. Town of Wheatland, 18 N.W. 514; Coffin v. Town of Palmer, 38 N.E. 509; Weber v. Town of Screenfield, 42 N.W. 101; Citing White v. Stowe, 54 Vt. 510.

The city's negligence was a question for the jury. Baxter v. City of Cedar Rapids, 72 N.W. 720.

Neither abutting owners or others can obstruct sidewalks. Callahan et al. v. Gilman, 14 N.E. 64; Davis et al. v. Mayor of City of N.Y., 14 N.Y. 506; Com. v. King, 13 Metc. 115; Com. v. Blaisdell, 107 Mass. 234; Freeman's Note, 1 Am. State Rep. 840; State v. Edens, 84 N.C. 526; Com. V. Wentworth, 4 Clark, 324; Shopp v. City of St. Louis, 22 S.W. 898.

Towns must keep roads in repair, not only as to surface and margins, but as to muniments; Glidden v. Reading, 38 Vt. 52; Lindsey v. Densville, 45 Vt. 72; Elliott on Roads and Streets (2d Ed.) 621; Gallamore v. City, 75 P. 978; Stafford v. City of Oskaloosa, 11 N.W. 668; Coffey v. City, 85 S.W. 532.

Sidewalks are portions of the highway. City of Chicago v. O'Brien, 53 Am. Rep. 640; Johnson v. City, 57 A. 363; City of Macon v. Holcomb, 69 N.E. 79; Coffey v. City, supra.

Side of street or sidewalk is a material part of it, and must be kept clean as well as other portions of it. Bunch v. Edenton, 90 N.C. 431; Bacon v. Boston, 3 Cush, 174; Houfe v. Town of Fulton, 29 Wis. 296; Wheeler v. Town of Westport, 30 Wis. 392; Kelly v. Town of Fon Du Lac, 31 Wis. 179; Burnes Administratrix v. Town of Elba, 32 Wis. 605; Cremer v. The Town of Portland 36 Wis. 92; Kenworthy v. The Town of Ironton, 41 Wis. 647; Cartwright v. Town, 58 Wis. 370; Fitzgerald v. City, 64 Wis. 207; Stricker v. Town 93 Wis. 460, 77 N.W. 897; Gorr v. Mattlesteadt, 96 Wis. 296; City v. Lowery, 74 Ind. 520.

Traveler may cross a street at any point without being liable to imputation of neglect. Brusso v. Buffalo, 90 N.Y. 679, citing Raymond v. Lowell, 60 Cush. 524, 530; Rea v. City of Sioux City, 103 N.W. 949; Pike v. City of Jamestown, 15 N.D. 157, 107 N.W. 359; Lincoln v. City of Detroit, 59 N.W. 617; Raymond v. Lowell, 6 Cush. 524; City of Louisville v. Johnson, 69 S.W. 803; Cotteril v. Starkey, 8 Car. & P. 691; Boss v. Litton, 5 Car. & P. 407; Griffin v. City of Boston, 65 N.E. 811; Miller v. Lewiston Co., 62 A. R. 32.

Suspension of a wire or other articles above the surface of a walk is an obstruction and is just as reprehensible as the obstruction of the surface itself by digging a ditch or otherwise. Larson v. Tobin, 44 N.W. 1078; Cremer v. The Town of Portland, 36 Wis. 92.

The jury could find from the length of time that the wire had been there that the city had notice. Hayes v. Town of Hyde Park, 27 N.E. 522; Pyke v. City of Jamestown, supra.

Negligence is always a question for the jury under proper instruction. 21 Am. & Eng. Enc. Law, 502, 503, 506, 507.

There was no negligence in going to the edge of the sidewalk, as respondent had a right to suppose that there were no impediments or pitfalls in any part of the street. Guffin v. City of Boston, 65 N.E. 811; Durant v. Palmer, 29 N.J. 544; City v. Augem, 48 N.E. 318; Griffin v. City, 65 N.E. 811; Monongahela City v. Fischer, 56 Am. Rep. 241; Gordon v. City of Richmond, 2 S.E. 727; Baker v. City of Grand Rapids, 69 N.W. 740, citing Thomp. Neg., section 387; Lincoln v. City, 101 Mich. 345; City Council v. Wright, 47 Am. Rep. 422; Barnes v. Town of Marcus, 65 N.W. 984; Heckman v. Evenson, 7 N.D. 173; Mathews v. City, 45 N.W. 894; Murphy v. Railway, 38 Iowa 539; Messenger v. Plate, 42 Iowa 443; Smith v. City, 74 P. 674.

Respondent was not guilty of contributory negligence in failing to observe the wire. Wall v. Town, 39 N.W. 560; Brush Electric Lighting Company v. Kelly, 25 N.E. 812; City of Louisville v. Keher, 79 S.W. 270; City v. Harris, 113 Ill.App. 633; City v. Trammel, 109 Ill.App. 524; Jennings v. Van Schaick, 15 N.E. 424; Bettingill v. City, 116 N.Y. 558; Turner v. Newburgh, 109 N.Y. 301; Jorgenson v. Squires, 144 N.Y. 281; Houghtaling v. Shally, 51 Hun. 599; Babbage v. Powers, 130 N.Y. 281; Harris v. Uebelhoer, 75 N.Y. 175; Chilsholm v. State, 36 N.E. 184, citing McQuire v. Spense, 91 N.Y. 303; Weed v. Village, 76 N.Y. 329; Brusso v. Buffalo, 90 N.Y. 679.

One running to a fire on the street in a dark night is not guilty of negligence. Jennings v. Van Schaick, 15 N.E. 242; Shook v. City of Cohoes, Id. 531; Stevens v. City of Logansport, 76 Ind. 498; Noblesville Gas & Imp. Co. v. Loehr, 24 N.E. 579; Barr v. Kansas City, 16 S.W. 483; Barry v. Ferkildsen, 13 P. 657; Cantwell v. City, 37 N.W. 813; West v. City, 61 N.W. 313; Mahnke v. R. R., 29 So. 52; LeBeau v. Telephone Co., 67 N.W. 339; City of Chicago v. Babcock, 32 N.E. 271; Fuller v. Hyde Park, 37 N.E. 782; Words v. City of Boston, 121 Mass. 337; Mayo v. R. R., 104 Mass. 137; France v. R. R., 116 Mass. 537; Hill v. Seekonk, 119 Mass. 85; Hunt v. Salem, 121 Mass. 294; Bruch v. City, 37 A. 818; Heckman v. Evenson, 7 N.D. 173.

OPINION

MORGAN, C. J.

Plaintiff brought this action to recover damages for a personal injury alleged to have been caused by an obstruction upon one of defendant's streets. The complaint alleges the injury to have been caused in the following manner: "That on or about the 24th day of March, A. D. 1904, at about the hour of 10 o'clock p. m. of said day, said plaintiff was lawfully upon the sidewalk on the east side of Fifth Street South, in the city of Fargo, North Dakota, about 30 feet from the intersection of Fifth Street South and Front street in said city, and moving southward on said sidewalk, when said plaintiff was then and there tripped up by a wire guy rope attached to said sidewalk and the other end of said rope attached to a fruit or notion stand on wheels, which stood on the street with the hind wheels of said stand against the curbing." Other material facts are that said fruit stand was about 10 feet long and 6 feet wide and 7 feet high from the street, and about 6 feet above the sidewalk. The sidewalk was 10 feet wide at this point. The wire was attached to the top corners of the stand, and fastened either to a stringer of the sidewalk, or to posts driven into the street. The wire was attached to the posts, or to the stringer, about eight feet south of the fruit stand Just how the wire was attached is a matter of some dispute, but we do not think that the discrepancy in the testimony of the witnesses can affect the result. The plaintiff testifies that the wire was fastened to the top of the corner of the fruit wagon, and therefrom ran down to and around a stringer of the sidewalk; that it reached the stringer, going between the planks of the walk, and, after being...