Kerr v. City of Grand Forks

• Decision Date: 24 January 1906
• Citation: 107 N.W. 197,15 N.D. 294
• Court: North Dakota Supreme Court

107 N.W. 197

15 N.D. 294

FLORENCE I. KERR v. THE CITY OF GRAND FORKS

Supreme Court of North Dakota

January 24, 1906

Rehearing denied March 15, 1906.

Appeal from District Court, Grand Forks county; Fisk, J.

Action by Florence I. Kerr against the city of Grand Forks. Judgment for plaintiff, and defendant appeals.

Affirmed.

Geo. A Bangs, for appellant.

Frank B. Feetham and Scott Rex, for respondent.

OPINION

MORGAN, C. J.

The plaintiff was injured by a fall upon a sidewalk of the defendant and brings this action to recover damages caused thereby. The first error assigned is that the court allowed the plaintiff to amend the complaint before going to trial. The original complaint pleads an ordinance of the defendant city prescribing the manner in which sidewalks shall be constructed. Paragraph 3 of the complaint was as follows "That upon the westerly side of 7th street between Selkirk and Cheyenne avenues and opposite the lots known as No. 307 and No. 309 N. 7th St., the sidewalk is not laid in accordance with the provisions of said city ordinance above quoted, but on the contrary the sidewalk does not conform to the grade of said city street, established by the city engineer and approved by the city council, and in that said sidewalk is not laid gradient throughout the entire side of said block, but that upon said walk there is a descent of from 6 to 10 inches in height, opposite to the numbers above indicated, slanting down from a higher to a lower walk in an exceedingly dangerous manner and in absolute contravention of the terms of said ordinance." Paragraph 4 of the original complaint was as follows: "That on the 20th day of March, 1903, the said sidewalk on the westerly side of North Seventh street, between Selkirk and Cheyenne avenue in said city, was a public walk, under the control of said defendant and that it was the duty of the defendant to see that the same was erected in a proper manner and kept in proper repair as one of the public ways of the city." The complaint further alleged: "That such accident was caused by reason of the defective, unsafe and dangerous walk at said point, in that said walk was not laid gradient, as hereinbefore described, which exposed a surface which was dangerous at all times and when wet or icy or covered with soft snow was an exceedingly dangerous walk. That at the time of such accident such dangerous place was concealed by loose light snow and underlying such light snow and upon the slanting piece of walk was a coating of ice. That this plaintiff while walking upon and over said sidewalk at said point on account of such dangerous, unsafe and defective condition of said walk, was caused to slip upon said inclined and slanting surface of said walk and to fall heavily and that by reason thereof she sustained severe injuries as follows." The complaint further alleged that the ordinances provided that it was the duty of the city to keep the sidewalks "free and clear of ice and snow." The amendments to the complaint which were allowed before the trial were as follows: By adding to paragraph 3, after the word "block," the words, "and was not laid gradient when constructed." And the following words at the end of said paragraph: "which defect has continued for a number of years last past and of which defect the defendant had due notice." Further, by adding to paragraph 4 the following: "And that said defendant negligently and carelessly permitted the said walk described in paragraph 3, to be constructed with a sharp slope of six inches or more rise and negligently permitted the same to remain in such defective condition well knowing that such walk as so constructed and used was unsafe for the use of pedestrians." Defendant objected to the amendment on the ground that it entirely changed the cause of action. The contention is that the original cause of action was one for damages arising out of the failure of the city to enforce its ordinances relating to the construction of sidewalks, and that the amended complaint states a cause of action against the city for negligence in permitting the sidewalk to remain in a defective and dangerous condition for an unreasonable time after notice of the existence of such condition. We are far from conceding the soundness of this contention. The original complaint, when liberally construed, seems to outline a cause of action growing out of a defective construction of the walk and permitting it to remain in that condition. The allegations are not definite in that regard, but the intention of the pleader to do so is evident. The original complaint and the amended complaint allege the same injury through a defect of the same sidewalk. Whether the two technically allege a different cause of action is immaterial. The statute permits such amendments in furtherance of justice. Section 5297, Revised Codes of 1899. The amended complaint makes it clear that the negligence of the city in constructing the walk and negligently permitting it to continue in a dangerous and defective condition was relied upon as the cause of the injury.

Conceding however, that the amendment set forth a...