Kimball v. City of Sioux Falls

• Decision Date: 01 December 1945
• Docket Number: 8794.
• Parties: KIMBALL v. CITY OF SIOUX FALLS et al.
• Court: South Dakota Supreme Court

20 N.W.2d 873

71 S.D. 35

KIMBALL v. CITY OF SIOUX FALLS et al.

No. 8794.

Supreme Court of South Dakota

December 1, 1945

Parliman & Parliman and Danforth & Danforth all of Sioux Falls, for appellant.

Roy D. Burns, of Sioux Falls, for respondent City of Sioux Falls.

Bailey Voorhees, Woods & Fuller, of Sioux Falls, for respondents other than City of Sioux Falls.

SICKEL Judge.

This is an action brought by plaintiff to recover damages for what she claims was the wrongful death of Harold A. Kimball, deceased. On May 26, 1943, decedent rode a motorcycle out of the rear end of a basement garage, up a concrete ramp, and out to the alley. Instead of turning and riding down the alley he rode across it, and off an eight foot embankment, landing on the adjoining lot below. Decedent died as a result of injuries received in the fall. This action was brought against the City of Sioux Falls, the owners of the lots on which decedent fell, and their agent. The case was tried to a jury. At the close of plaintiff's evidence defendants made motions for directed verdict, which were granted. Judgment was entered dismissing the action and plaintiff has appealed.

Appellant contends that the court erred in granting the motions for the reason that the evidence was sufficient to justify the jury in finding that the defendants were all negligent, and that such negligence was the proximate cause of the death of Kimball. This contention is based on the existence of an eight foot depression on the lots east of the alley, and on the absence of a guardrail or other barrier at the east alley line. She claims that these facts are sufficient to prove the negligence of the lot owners and of the city.

The general rule as to the duty of the owner of lots adjacent to a public way was stated in the English case of Hardcastle v. South Yorkshire Railway, 4 Hurl. and Nov. 67. The rule stated in that case was quoted with approval in Sanders v. Reister, 1 Dak. 151, Reprint p. 145, 46 N.W. 680, as follows:

'When an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in the case of a horse or carriage way, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences.'

The rule is also stated in Restatement, Torts, § 368, as follows:

'A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them.'

Comment a under the section referred to above states:

'In order that the rule stated in this Section shall apply, the condition must not only be one which a reasonable man would recognize as involving an unreasonable risk to properly conducted traffic upon an adjacent highway, but also it must have been created by the possessor or his predecessor in possession or by someone acting on their behalf or by their permission after the highway has been dedicated.'

See also 25 Am.Jur., Highways, §§ 364, 530.

It will be noted that the rule fixing liability on the owner of the adjoining land applies only in case he has created the excavation or other artificial condition which caused or contributed to the injury. The rule of liability does not apply to a condition created by others for whom the lot owner is not responsible and over whom he has no control.

Here there is an entire absence of any evidence to show that an excavation was made on the adjacent lots by any one. There is no evidence to show how the embankment was created. Photographs and other evidence in the case show the lot levels on both sides of the alley, and rather indicate that the depression was caused by the establishment of the alley grade at a height several feet above the level of the land on both sides of it.

Assuming, but not deciding, that this embankment was sufficiently near the alley to make it probable that persons traveling the public way might be hurt, the question then is whether it was the duty of the owners of the lots to remove the condition or to properly guard it.

Section 368 of the Restatement referred to above, Subdivision b, states:

'If a highway is established in close contiguity to an excavation or other dangerous condition upon the possessor's land, whether constructed by him or otherwise created, the duty to guard such dangerous condition is upon those who are charged with the duty of maintaining the highway in a reasonably safe condition for travel and not upon the possessor of land upon which the dangerous condition is situate.'

Subdivision e of the same section states:

'The rule stated in this Section does not impose any duty upon a possessor of land to remove or guard dangerous conditions which existed at the time the highway was dedicated.'

Illustration Number 4 under this section reads as follows:

'4. A is the possessor of land upon which there is a deep quarry. A highway is laid out and established running along the edge of this existing quarry. It is the duty of the municipality maintaining the highway for public travel, and not A, to erect and maintain fences or other guards to protect travelers upon the highway.'

In the absence of evidence to show that an excavation was made on the adjacent lots or that the dangerous condition of the alley and adjacent property, if it was such, was created by the owners of adjoinings lots, there is no basis for imposing upon such lot owners the legal obligation to maintain a guard at the lot line.

The next question is whether it was the duty of the city, under the circumstances of this case, to maintain a guard or barrier at the east line of the alley where the accident occurred. The rule as stated in Briglia v. City of St. Paul, 134 Minn. 97, 158 N.W. 794, 795, L.R.A.1916F, 1216, is:

'It is the duty of the city to use ordinary care to keep its streets in safe condition for travel. The city is not, as a rule bound to make safe for travel the area outside of a public street, nor to fence or erect barriers to prevent travelers from straying off the...