Maloney v. City of Grand Forks

• Decision Date: 22 September 1944
• Docket Number: 6935.
• Court: North Dakota Supreme Court

15 N.W.2d 769

73 N.D. 445

MALONEY v. CITY OF GRAND FORKS.

No. 6935.

Supreme Court of North Dakota

September 22, 1944

Syllabus by the Court.

1. There is a duty incumbent upon a city to maintain its sidewalks in a reasonably safe condition for travel in the ordinary modes, by day or by night. Anderson v. City of Jamestown, 50 N.D. 531, 196 N.W. 753, followed.

2. A city is answerable in damages for the lack of ordinary and reasonable care, and is held to the same rule of negligence which is expected of private persons in the conduct of their business involving a like danger to others.

3. The question of negligence is a question of fact, never of law unless the established or conceded facts from which the inference must be drawn admit of but one conclusion by reasonable men.

4. Where a city permits a cement slab in one of its sidewalks and approximately eighteen inches square, to remain from an inch to an inch and a quarter, or slightly higher, elevated above an adjoining one for such a period of time as to constitute constructive notice to the city of the continuance of such defect, the question of whether the city in permitting the continuance of such defect is guilty of negligence is a question for the jury primarily, to be determined from a review of all of the circumstances of the case.

Burtness & Shaft, of Grand Forks, for plaintiff and respondent.

Philip R. Bangs, Sp. Asst. City Atty., of Grand Forks, for defendant and appellant.

BURR, Judge.

This is an action to recover for injuries received while walking on a sidewalk. The jury found for the plaintiff. A motion for judgment notwithstanding the verdict or for a new trial was denied. Judgment was entered for the plaintiff and from the order denying judgment notwithstanding the verdict and denying a new trial and from the judgment entered defendant appeals. The question is narrowed to one general issue--is any liability of the city shown?

The material facts bearing on this question are. The plaintiff in walking in a southerly direction on South Fourth Street on January 1 1942, stubbed her toe on a cement slab of the sidewalk and fell, sustaining severe injuries. The sidewalk is one over which there is a great deal of travel, and consists of four lines of cement slabs, each slab approximately eighteen inches square. One edge of one of the middle slabs and risen above the level at right angles to the sides of the walk. The flare had a northern exposure and was about an inch high at one end and approximately an inch and a quarter at the other. One witness for the plaintiff estimated it slightly higher. The owner of the abutting property repaired the defect ten to fifteen days after the accident. Two other instances of tripping because of this defect were shown although no injury resulted therefrom. This defect existed for at least two years. There is a slight difference in the testimony in regard to the height of the elevation but on this appeal we accept the view of the testimony most favorable to the respondent. See DeMoss v. Great Northern Railway Company, 67 N.D. 412, 272 N.W. 506; Pederson v O'Rourke, 54 N.D. 428, 430, 209 N.W. 798, 799; Armstrong v. McDonald et al., 72 N.D. 28, 4 N.W.2d 191.

There is no proof of any actual notice to the city of the existence of this defect. The plaintiff relies upon the continuous existence of a defect in a sidewalk very much in use.

'Constructive notice means notice which the law imputes from the circumstances of the case, and a municipality is chargeable with notice of such defects as ordinary and reasonable diligence would have discovered; or, stated in another way, if facts exist with which ignorance is not compatible, except on the assumption of failure to exercise reasonable care, notice will be presumed.' Anderson v. City of Jamestown, 50 N.D. 531, 536, 196 N.W. 753, 754. 'Whether a defect in a sidewalk has existed a sufficient length of time and under such circumstances that the city is deemed to have had notice thereof is a question of fact, and not one of law; * * *.' Hendershott v. City of Grand Rapids, 142 Mich. 140, 105 N.W. 140.

A broad general rule with reference to constructive notice of a defect in the sidewalks is laid down in Todd, Administrator, etc., v. City of Troy, 61 N.Y. 506, 509. Here the court said:

'It was the duty of the city, under its charter, to keep the streets in repair and in suitable condition for public travel, and any person suffering damage or injury, without any fault on his part from a neglect of this duty, has a cause of action against the city. Before the city can be made liable in any case, it must be shown that it had notice of the bad condition of the street. This notice can be either express or constructive. By constructive notice is meant such notice as the law imputes from the circumstances of the case. It is the duty of the municipal authorities to exercise an active vigilance over the streets; to see that they are kept in a reasonably safe condition for public travel. They cannot fold their arms and shut their eyes, and say they have no notice.'

In Lundon v. City of Chicago, 83 Ill.App. 208, the trial court had charged the jury that it was sufficient if 'the unsafe condition had lasted long enough so that, in the exercise of reasonable care, the city ought to have known.' The court of appeals states:

'The record does not show that the city has any such officer, nor indicate where he could be found. The city has no right to claim exemption upon the ground that some particular officer has not been notified of the dangerous condition of a sidewalk. It is the duty of the city's representatives--as, for example, its police or other employes--to notify the proper officer, whose duty it is to repair such places and keep them in order * * *.'

The statement of the law was upheld in Randolph v. City of Chicago, 315 Ill.App. 85, 42 N.E.2d 143, where the plaintiff had recovered judgment. The trial court granted a new trial, but this action of the trial court was reversed.

The particular officer whose duty it is to oversee and inspect the streets is presumed to do his duty. If he did not, it would be negligence.

'If, therefore, the evidence in this case shows that there was a defect in the sidewalk, of which the city had knowledge, or by the exercise of reasonable diligence ought to have known, and the plaintiff, while exercising proper care, stepped into the hole, and was thereby injured, the municipality would be liable for such damages as ensued; * * *.' Keen v. Mayor of the City of Havre de Grace, 93 Md. 34, 48 A. 444, 445.

In Mayor, etc., v. Stallings, 125 Md. 343, 93 A. 974, the same court states that 'constructive notice' means 'the notice which the law imputes from the fact that the walk had been out of repair such a length of time that the municipal officers could have, by the exercise of due care, learned of the defect in time to have repaired it before the injury occurred.'

Of course, to charge the commissioner of the streets or highways with constructive notice of a defect it must be shown 'that defect was there long enough and was of such dangerous character that commissioner by exercise of reasonable care should have discovered it and remedied it.' Falkowski v. MacDonald, etc., 116 Conn. 241, 164 A. 650.

The commissioner of the streets is required to exercise ordinary care and diligence on his part in the oversight of the streets. If the defect had been there and 'existed for such length of time as to have afforded the municipal authorities a reasonable opportunity to have discovered it,' then constructive notice of the defect has been established. Tudor v. City of Louisville, 172 Ky. 429, 189 S.W. 456, 457. The court further states that such negligence when established is the negligence which consists of acts of nonfeasance--the failure to discharge duty. (Page 458 of 189 S.W.)

This same rule is stated thus by the Tennessee Supreme Court:

'If there was a defect in the sidewalk, and that the defect was so patent and obvious as to be generally noticed by persons passing over it, and thus continued to exist for such a length of time prior to the time of the alleged accident as that it might be reasonably inferred that some * * * employe of defendant, whose duty it was to keep the streets in repair, had notice of such defects,' then the city would have constructive notice. Poole et ux. v. Mayor, etc., of City of Jackson, 93 Tenn. 62, 23 S.W. 57, 59.

If the street mileage is such that one official can not oversee it all, then it is the duty of the city to furnish sufficient assistance.

This question of constructive notice was submitted to the jury under appropriate instructions. They jury found against the defendant and on this appeal the jury's finding is conclusive.

The defendant sets forth a city ordinance requiring the owner of abutting property to keep the sidewalk in repair and providing penalty for failure to do so. On the appeal, little, if any, stress is laid on this proposition. The municipality can not shift any burden which rests upon it to the shoulders of the owner of the abutting property, even though it may have the right to compel him 'to assist city in performing its municipal duty.' See Clark v. Stoudt, 73 N.D. 165, 12 N.W.2d 708.

The real issue is whether the defect shown is of such a character that it can be said it was for the court to decide the matter of negligence. It is the argument of the defendant that the defect was a trivial one, that 'a city is not liable in tort for its failure to remedy or repair small defects and irregularities in the sidewalks caused by natural causes such as frost, changes in weather, tree roots, etc., which defects and irregularities are common and usual in sidewalks in all...