Lindholm v. City of St. Paul
| Decision Date | 01 January 1874 |
| Citation | 19 Minn. 204 |
| Parties | AXEL T. LINDHOLM v. CITY OF ST. PAUL. |
| Court | Minnesota Supreme Court |
W. A. Gorman, City Atty., for appellant.
Bigelow, Flandrau & Clark, for respondent.
COPYRIGHT MATERIAL OMITTED
The plaintiff brings this action to recover damages for injuries occasioned to his person and property by the alleged negligent failure of defendant to keep in repair a public street called Seventh street. Chapter 26, Sp. Laws 1868, (defendant's charter,) in section 1, subc. 7, enacts that "the common council shall have the care, supervision, and control of all public highways, bridges, streets, * * * within the limits of said city, and shall cause all streets which may have been opened and graded to be kept open and in repair."
The evidence in this case tended to show that Seventh street was at the time of the accident, (August, 1871,) and for many years before had been, a public street and highway of said city; that as early as 1864 it had been "partly opened and partly graded" by defendant at the place where the accident occurred, and for a considerable distance from said place upon each side thereof; that the embankment upon which the accident occurred was constructed by defendant in 1864 for the express and avowed purpose of making a "passable roadway" over the portion of Seventh street where it was constructed; that from time to time defendant had repaired said embankment; and that said Seventh street, during all the time while it remained so "partly graded," "has been used and traveled upon by the public generally."
The phrases "partly opened" and "partly graded" are found in a stipulation signed by the city attorney, and admitting certain facts for the purposes of the trial. It might not be very easy to define the exact and full meaning of these phrases. Fortunately, however, such definition is not necessary in this case; for whatever rational sense is attributed to these phrases, the evidence, of which the admissions contained in them form a part, taken as a whole, clearly tends to show that that portion of Seventh street where the accident happened was opened and graded by the defendant to the extent that it was opened and graded (whatever that may be) for the express and avowed purpose, and with the result, of inviting and accommodating public travel thereon as the same is opened and graded. Bowman v. City of Boston, 5 Cush. 1; Com. v. Boston, 16 Pick. 442. If so, it was the duty of the city to keep such portion open and in repair.
The charter provision before quoted requires "all streets, which may have been opened and graded, to be kept open and in repair." This does not, as the city attorney appears to claim, make the duty to keep open and in repair dependent upon the establishment of what is known as the grade of the street, or upon the final completion of grading in conformity to such established grade, or upon a formal opening of the street; as, for instance, by a resolution of the common council. The construction thus contended for in behalf of the defendant is not only not necessary nor natural, but it would work great practical injustice. It would permit the city authorities to improve a street, (by grading it and otherwise,) so far as to adapt it to public travel, and to invite and encourage public travel thereupon by improvements, repairs, and other means, and thus, in effect to hold out to the public that it was a safe highway, without incurring any responsibility for injuries arising from the negligent disrepair of a highway, which the public had in this manner been induced to make use of. This would be a plain disregard of the obligations of good faith and common honesty, as well as of the duty imposed by the charter provision before quoted, which commits "the care, supervision, and control of all public highways, bridges, and streets within the limits of said city" to the common council.
It is further contended by defendant's counsel that the...
To continue reading
Request your trial
-
McDonald v. City of St. Paul
......81; Fitzgerald v. City, 64. Wis. 203; Cartright v. Town, 58 Wis. 370; Rice. v. Town, 19 Vt. 470; Bacon v. City, 3 Cush. 174, 176; City of Hannibal v. Campbell, 30 C.C.A. 63; Dubois v. City, 102 N.Y. 219; Oliver v. City, 13 Colo.App. 345; Dougherty v. Trustees,. 159 N.Y. 154; Lindholm v. City of St. Paul, 19 Minn. 204 (245); Treise v. City of St. Paul, 36 Minn. 526. . . From. the foregoing authorities we must conclude: That defendant. was not required to keep Marshall avenue safe for travel. throughout its entire width. It performed its whole duty when. ......
-
Nutting v. City of St. Paul
...condition; it had practically graded the street, and assumed control over it, and formal proceedings need not be shown. Lindholm v. City of St. Paul, 19 Minn. 204 (245); Phelps v. City of Mankato, 23 Minn. 276; Treise v. City of St. Paul, 36 Minn. 526; 2 Dillon, Mun. Corp. § 1009. The city ......
-
Noonan v. City of Stillwater
...neglect of that duty. City of St. Paul v. Seitz, 3 Minn. 205, (297;) Shartle v. City of Minneapolis, 17 Minn. 284, (308;) Lindholm v. City of St. Paul, 19 Minn. 204, (245;) Moore v. City of Minneapolis, Id. 258, (300.) For this purpose a sidewalk is a part of the street. Furnell v. City of ......
-
Treise v. City of St. Paul
...public travel thereon, the duty to keep such portion in repair, and the consequent liability for failing to do so, arises. Lindholm v. City of St. Paul, 19 Minn. 204, (245.) In this case the evidence shows that where St. Albans street intersects Marshall avenue, (the grade established on th......