Jones v. Ogden City

• Decision Date: 16 April 1907
• Docket Number: 1817
• Citation: 32 Utah 221,89 P. 1006
• Court: Utah Supreme Court
• Parties: JONES v. OGDEN CITY et al

89 P. 1006

32 Utah 221

JONES v. OGDEN CITY et al

No. 1817

Supreme Court of Utah

April 16, 1907

APPEAL from District Court, Second District; J. A. Howell Judge.

Action by Charles A. Jones against the city of Ogden and others. From a judgment for defendants, plaintiff appeals.

REVERSED AND REMANDED.

N. J Harris for appellant.

APPELLANT'S POINTS.

Notice to the police department of the existence of such obstructions constituted actual notice thereof to the city. (Denver v. Dean, 10 Col. 375, 3 Am. St. 594; Farley v. Mayor of New York, 152 N.Y. 222, 57 Am St. 511; Carrington v. St. Louis, 89 Mo. 208, 58 Am Rep. 108; Rehberg v. Mayor of New York, 91 N.Y. 137, 43 Am. Rep. 657.)

Moreover the questions as to whether the municipality had notice, and if so, whether it had sufficient time to remove the obstructions or to guard them before the accident, are questions of fact for the jury to determine, and not for the court. (Scoville v. Salt Lake City, 11 Utah 60, and cases cited on page 65; Rehber v. Mayor of N.Y., supra.)

W. L. Maginnis, Jno. E. Bagley, and Joseph Chez for respondent.

RESPONDENT'S POINTS.

Notice must be brought home to a proper officer charged with the maintenance and supervision of the streets. (Elliot on Roads and Streets [2 Ed.], sec. 629; Hines v. Fond DuLac, 71 Wis. 74; Warsaw v. Dunlap; 112 Ind. 576; Mayor of Franklin v. House [Tenn.], 55 S.W. 153; Madison v. Baker, 103 Ind. 41; Chicago v. McCarthy, 75 Ill. 602; Carrington v. St. Louis, 88 Mo. 208; Littlefield v. Norwich, 40 Conn. 406; Chapman v. Mayor, 55 Ga. 566.) "It is the settled law of this court that when the evidence given at the trial with all the inferences that the jury could justifiably draw from it is insufficient to support a verdict for the plaintiff, so that such verdict if returned must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant." This rule is supported by Pleasant v. Fant, 22 Wal. (U.S.) 116; Herbert v. Butler, 97 (U.S.) 319; Bowditch v. Boston, 101 (U.S.) 16; Greggs v. Houston, 104 (U.S.) 553. In the following cases held that the time was too short to impute notice, in the absence of express notice, and did not afford evidence of negligence such as would warrant the judges in submitting the matter to the jury. (Breil v. Buffalo, 144 N.Y. 163, 38 N.E. 977; Carey v. Ann Arbor, 124 Mich. 134, 82 N.W. 804; Warsaw v. Dunlap, 112 Ind. 579, 14 N.E. 568; Lewisville v. Boston, 29 Ind.App. 21, 63 N.E. 861; Leipsic v. Gerdeman, 68 Ohio St. , 67 N.E. 87; Breil v. Buffalo, 144 N.Y. 163, 38 N.E. 977; Carey v. Ann Arbor, 124 Mich. 134, 82 N.W. 804; Smith v. Walker Twp., 117 Mich. 14, 4 Am. Rep. Neg. 500; Klatt v. Milwaukee, 53 Wis. 196; Ince v. Toronto, 20 Occ. N. 300; O'Connor v. New York, 29 N.Y. St. 502; Franklin v. House, 104 Tenn. , 55 S.W. 153.)

McCARTY, C. J. STRAUP and FRICK, JJ., concur.

OPINION

STATEMENT OF FACTS.

Plaintiff brought this action to recover damages for personal injuries alleged to have been received by him through the negligence of defendants. Each of the defendants filed a separate answer, and a trial was had to a jury. When the evidence was all in and each of the respective parties had rested, the court, on motion of defendants, directed a verdict in their favor, "No cause of action," on the ground that the evidence was insufficient to support a verdict for plaintiff. From the judgment entered on the verdict, plaintiff has appealed to this court.

The facts, as disclosed by the record, are about as follows: On August 3, 1904, defendant Louis J. Bucher was constructing a sidewalk in front of a building owned by defendant George E. Maule, and located on the east side of Washington avenue, which is one of the principal business streets and the main thoroughfare of Ogden City, Utah. Bucher had collected and placed on the street a large pile of building material, consisting of sand, gravel, cement, and lumber, the same extending out into the street from the curbing of the sidewalk, a distance variously estimated at from twelve to twenty feet. The lumber and cement were piled next to the sidewalk, and the sand and gravel were piled just outside of the cement and lumber. On the third day of the work, August 3, 1904, defendant Maule, for whom the work was being done, purchased two large iron beams from the George A. Lowe Company, and instructed said company to deliver them in front of his residence, where the walk was in course of construction. The beams were delivered in accordance with the directions given at about 4:30 o'clock p. m. of that same day, and were laid on the edge of the gravel and parallel with the street. These beams and the other building material were left in the street, where they had been unloaded and deposited, until the following day, when they were used and placed in the sidewalk by defendant Bucher. About midnight of the same day on which the material was placed in the street plaintiff, while driving along Washington avenue with a horse and buggy, ran upon the pile of gravel, and, in turning so as to avoid further contract with the obstruction, the horse stepped on the two iron beams and became frightened and started to run. Plaintiff was thrown from the buggy and dragged several rods and received the injuries complained of. There were no guards or railings around this building material, nor were there any lights or warnings of any kind upon or near these obstructions. The plaintiff testified, and his testimony is corroborated by that of several other witnesses, that the night was very dark, and that it was next to, if not, impossible to see the obstructions. On this point he said: "It was very dark. There was no moon, . . . and the lights from the stores were all out, and I could not see the obstructions. . . . I got down on my hands and knees and found the gravel and beams." Prior to the accident one end of the beams was twice moved out into the street by wagons coming in contact with them. Between 11 and 12 o'clock that night one of these iron beams was displaced by a wagon coming in contact with it, and pushed or dragged so that one end extended diagonally from the gravel into the street and was replaced by a policeman. Soon after the accident the police department of Ogden city was notified that the beams referred to had been displaced and were obstructing the street, and the department immediately sent two policemen to the place where the accident occurred who moved the beams back against the gravel and left them in the position in which they were first deposited in the street.

McCARTY, C. J. (after stating the facts).

The complaint, after reciting the manner in which plaintiff's horse and buggy came in contact with the pile of gravel and iron beams referred to in the foregoing statement of facts and that plaintiff was thrown out and dragged on the pavement, alleges "that plaintiff was greatly injured by reason thereof, that his right arm and right leg were badly bruised and sprained, . . . and that he was otherwise made sick, sore, and lame, and was thereby detained from his business for thirty days," etc. At the trial the following questions were asked plaintiff on direct examination: "How long after this accident before the injury to your arm was healed--before you recovered? How long was it after the injury, Mr. Jones, before your knee, which was sprained, recovered? For how long were you unable to do any work after this accident? How long was it...