O'Leary v. City of Mankato

• Decision Date: 06 October 1874
• Citation: 21 Minn. 65
• Parties: EDWARD O'LEARY <I>vs.</I> CITY OF MANKATO.
• Court: Minnesota Supreme Court

21 Minn. 65

EDWARD O'LEARY vs. CITY OF MANKATO.

Supreme Court of Minnesota.

October 6, 1874.

Action to recover damages for injuries to the plaintiff and his property, occasioned by alleged negligence of the defendant.

Trial before Waite, J., in the district court for Blue Earth county, the facts proved being stated in the opinion. At the request of the plaintiff, the judge charged the jury, in substance: 1. That a municipal corporation, having the exclusive control of the streets within its limits, is obliged to keep them in a safe condition; and if it neglects this duty, and injury results to any person by this neglect, the corporation is liable for the damages sustained. To this instruction the judge added the following: What is ordinary and reasonable care, in a case of this kind, depends on the location of the street, the amount or degree that it is travelled, and all the circumstances surrounding the case.

The first, third and sixth instructions asked by the defendant related to the question of plaintiff's alleged contributory negligence; but the jury found specifically that plaintiff was guiltless of negligence.

The defendant also requested the following instructions:

2. Proof of the street being in the condition in which this one is shown to have been, at the time of the accident, does not necessarily charge the city with negligence in respect to it.

4. If the jury are satisfied that, at the time of the accident, the street was in such condition that persons of ordinary prudence and carefulness, and possessed of a knowledge of the existence of the ditch, would have avoided it, they should find no cause of action.

5. If plaintiff knew of the existence of the ditch, it was his duty to seek to avoid it, by the exercise of such care as persons of ordinary prudence are accustomed to use under like circumstances; and if he did not do so, he cannot recover for any injury his own want of care may have helped to produce.

7. If plaintiff, knowing of the existence of the ditch, was, at the time of the accident, thoughtless of it, that thoughtlessness may be considered by the jury as negligence.

The court refused each of these instructions, but, in response to the last request, charged: "You may, however consider such a fact in determining the question of negligence."

The defendant duly excepted to each of the rulings of the court upon its own and the plaintiff's requests for instructions. The jury found for plaintiff, a new trial was refused, and defendant appealed.

Severance & Dickinson, for appellant.

Pfau & Bell, for respondent.

YOUNG, J.

The defendant, the City of Mankato, is a municipal corporation, having the care, supervision and control of all streets within its limits, and the power to levy a special tax on all taxable property of the city, for the purpose of constructing, maintaining and repairing its streets. Sp. Laws, 1868, p. 131, § 1; p. 129, § 2. The provisions of its charter on these subjects are nearly identical with those of the charter of the city of Minneapolis, cited in Shartle v. Minneapolis, 17 Minn. 308, 312, 313.

Across Second street, the most frequented of all the streets in the city, with perhaps one exception, there had for a long time been an open ditch, or drain, three feet deep, about three feet wide at the bottom, and from six to eight feet wide at the top. Over this ditch was a bridge, on the westerly side of the street, and four or five feet from the sidewalk. This bridge was about eighteen feet wide, and the travelled track in the street led up to and over it. A few days prior to August 10, 1872, the street commissioner of the city had removed this bridge, and built a new bridge across the ditch, in the centre of the street, and about nineteen feet from the sidewalk on the westerly side. The new bridge was of about the same width as the old, and covered a few feet of the ditch which had been covered by the old bridge, and about four feet of this new bridge was opposite the old track. Within two rods of the ditch, the track to the new bridge turned off abruptly from the old track. There had not been much travel along that part of the street opposite the new bridge; the street was passable, but the track was rough. No guard or protection of any kind was placed where the old bridge had stood. On the night of August 10, which was very dark, the plaintiff, who did not know of the removal of the...