McCleod v. Tri-State Milling Co.
| Decision Date | 21 October 1946 |
| Docket Number | 8784. |
| Citation | 24 N.W.2d 485,71 S.D. 362 |
| Parties | McCLEOD v. TRI-STATE MILLING CO. |
| Court | South Dakota Supreme Court |
H. F. Fellows, of Rapid City, for plaintiff and respondent.
Harold R. Hanley and Whiting & Wilson, all of Rapid City, for defendant and appellant.
This is an action brought by John M. McCleod as special administrator against the Tri-State Milling Company to recover damages for the death of his son John, four years of age, who was drowned on June 4, 1943, in a canal maintained by the defendant.
There is no substantial conflict in the evidence. From the record, it appears that an ordinance known in the record as 'Exhibit 1' was enacted in August, 1889, by the city council of Rapid City granting to the Rapid River Milling Company the right to excavate a canal across and along the streets therein named. It requires that the canal 'be boxed in a good workmanlike and thorough manner' and that the company keep the 'alleys and streets that said ditch or canal crosses or traverses in good condition so that travel or the use' of such alleys and streets be not impeded. It also provides that the company is 'responsible for damages occasioned or caused by said ditch or canal' and if the company fails 'to keep such ditch or canal in reasonable or proper repairs, after ten days written notice having been given to said company by the city council of the city of Rapid City', then the ordinance becomes null and void. The canal enters St. Louis street between Seventh and Eighth streets and extends through St. Louis street in an easterly direction to Fourth street. The portion of St. Louis street outside of that occupied by the canal is open to travel. The canal as originally constructed was covered throughout its length, but in a few years the timbers with which the canal was boxed decayed and the cover entirely disappeared. The defendant Tri-State Milling Company acquired the mill and plant of the Rapid River Milling Company in 1934 and shortly thereafter constructed along the banks of the canal a fence made of woven wire, 38 inches high, iron posts set in concrete and two strands of barbed wire above the woven wire.
The McCleod residence is on St. Louis street between Sixth and Seventh streets, facing the south bank of the canal. There were three openings under the fence along the south bank, making it possible for children to crawl under the fence. No one saw the boy enter the enclosure, and the only evidence tending to show by what route he reached the canal is that of the mother who testified that a toy with which the boy was playing earlier in the day was found on the bank of the canal near one of the openings under the fence. There was evidence that small children were accustomed to play along the south fence to the knowledge of officers of the defendant company.
The allegations of negligence as set forth in the complaint upon which the case was tried are that 'defendant, negligently and in violation of the ordinances of the City, operated and maintained along and upon St. Louis Street in the City of Rapid City, South Dakota, between Sixth and Seventh Streets an open and uncovered ditch or canal filled with deep water which the corporation then knew, or should have known was attractive and dangerous to children of tender years.' Defendant answered admitting that plaintiff's son was drowned, but denied that the canal was negligently maintained or that the death of the child was caused by the negligence of the defendant.
The jury returned a verdict in favor of the plaintiff for $4,250 and defendant whose motion for judgment notwithstanding the verdict or for a new trial was denied has appealed.
The main question for our consideration is whether a violation of this so-called ordinance creates a civil right of action in a party injured thereby. The trial court instructed the jury that if the jury should find from the evidence 'that the defendant corporation violated City Ordinance No. 66 of the city of Rapid City, South Dakota, in that it failed to keep and maintain the ditch or canal in which the child John McCleod was drowned, covered and boxed as required by said ordinance, and that such violation directly and proximately caused said death, or was a direct and proximate contributing cause thereof', then its verdict should be in favor of plaintiff and that 'this is so for the reason that any person who violates such a city ordinance is negligent as a matter of law, if such violation causes or contributes to such accident or death.' Defendant claims that if Exhibit 1 is an ordinance as distinguished from a mere permit or license by the city to a private corporation to occupy or use portions of public streets for the construction of a canal a violation thereof does not result in liability as stated by the court in its instruction.
The question frequently arises in actions for negligence whether a liability may be predicated on the violation of a statute or ordinance, or as to whether the violation constitutes negligence as a matter of law, where such enactment may regulate the performance of an existing duty or where no common-law duty existed independent of the statute or ordinance. The rule as to the violation of a statutory duty as declared in this state is that if such violation is the proximate cause of an injury to a person for whose protection the statute was enacted it constitutes negligence as a matter of law unless under certain circumstances it is excusable or justifiable. Zeller v. Pikovsky, 66 S.D. 71, 278 N.W. 174. There is a diversity of judicial opinion as to the effect of ordinances in determining liability for negligence. 38 Am.Jur., Negligence, § 168. Decisions in this state have approved the submission of ordinances in connection with other evidence to the jury for consideration. Merrill v Minneapolis & St. L. Ry. Co., 27 S.D. 1, 129 N.W. 468; Whaley v. Vidal, 27 S.D. 627, 132 N.W. 242; Sioux Falls Traction System v. Great Northern Ry. Co., 39 S.D. 17, 162 N.W. 740; Cameron v. Miller, 43 S.D. 429, 180 N.W. 71. It was not necessary therein to determine whether the violation of an ordinance is negligence per se. An ordinance authorized and duly enacted within the municipal power has the same local effect as a statute. City of Huron v. Campbell, 3 S.D 309, 53 N.W. 182. With respect to the conclusive effect of statutes and ordinances there is no good reason for a distinction. The violation of a statute or ordinance, designed for the benefit of individuals, is of itself sufficient to prove such a breach of duty as will sustain an action for negligence brought by a person within the protected class if other elements of negligence concur. The statute or ordinance becomes the standard of care or the rule of the ordinarily careful and prudent person.
A municipal corporation is charged with the duty of keeping its streets and sidewalks in a reasonably safe condition. Bohl v. City of Dell Rapids, 15 S.D. 619, 91 N.W. 315; Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848; Gellenbeck v. City of Mobridge, 40 S.D. 157, 166 N.W. 631; Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438, 439, 29 A.L.R. 841; Hermandson v. City of Canton, 60 S.D. 367, 244 N.W. 525; Fenton v. Ackerman, 66 S.D. 465, 285 N.W. 516. Defendant viewing the ordinance as having the effect of a contract between the city and the company determining between them the obligation of keeping the canal in repair contends that no right of action accrued by its breach for the reason that the ordinance imposing upon the company performance of a part of the duty of the city to the public was intended for the benefit of the city or the public at large and not for the benefit or protection of individuals. In determining whether there has been such violation of a legislative enactment as may constitute negligence regard must be had to the purpose of the enactment. The failure as we have stated to observe the requirements of an ordinance enacted for the benefit of individuals will sustain an action for negligence, provided other elements of negligence concur. Bott v. Pratt, 33 Minn. 323, 23 N.W. 237, 53 Am.Rep. 47; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S.W. 648, 5 L.R.A., N.S., 186; Hayes v. Michigan Cent. R. Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410; see Annotations in 5 L.R.A.,N.S., 186 and 132 A.L.R. 871. Where the provisions of an ordinance impose duties not for the benefit of individuals comprising the public, but for the benefit of the municipality or the public considered as an entity, no right of action arises in one injured by reason of noncompliance. Taylor v. L. S. & M. S. R. Co., 45 Mich. 74, 7 N.W. 728, 40 Am.Rep. 457; Heeney v. Sprague, 11 R.I. 456, 23 Am.Rep. 502; Flynn v. Canton Co., 40 Md. 312, 17 Am.Rep. 603; Hay v. City of Baraboo, 127 Wis. 1, 105 N.W. 654, 3 L.R.A.,N.S., 84, 115 Am.St.Rep. 977; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767, 101 N.W. 995, 68 L.R.A. 425, Restatement of the Law of Torts, § 288. 'The nature of the duty,' said the court in Taylor v. L. S. & M. S. R. Co., supra [45 Mich. 74, 7 N.W. 729], 'and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit.'
The ordinance granted to the milling company permission to excavate and maintain the canal along and across streets and alleys of the city upon condition that the company keep such streets and alleys in repair. While the duty to keep streets in repair is imposed by law upon a city, it is the settled law that where a person in consideration of a license or other advantage agrees to perform a duty, such as the repair of a street used by it, he...
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