McDonald v. City of St. Paul
| Decision Date | 23 January 1901 |
| Docket Number | 12,406 - (207) |
| Citation | 84 N.W. 1022,82 Minn. 308 |
| Parties | MARIAN McDONALD v. CITY OF ST. PAUL |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $5,000 damages for personal injuries. The case was tried before Otis, J., and jury, which rendered a verdict in favor of plaintiff. From a judgment entered pursuant to the verdict defendant appealed. Affirmed.
Personal Injury.
The plaintiff was thrown down and injured by a wire stretched along the boulevard at a street corner, and this is an action to recover damages for her injuries. Held:
Use of Street.
1. The primary purpose of a public street is to accommodate public travel, but whenever any portion of a street not devoted to business purposes can be set apart for park or boulevard purposes without any substantial impairment of such primary purpose, the city may set such portion apart for a boulevard.
Use of Boulevard.
2. When a city has rightly set apart and improved a part of a street for a boulevard, it is not bound to use due care to keep such part free from all obvious obstructions which are necessarily incident to its use as a boulevard, although they may endanger the safety of travelers thereon.
Obstruction at Corners.
3. But a city has no right to maintain, or permit others to do so on its boulevards, and especially on those at the street corners, anything in the nature of a dangerous pitfall, or trap, or snare, or like obstruction, whereby the traveler may be injured.
Negligence a Question of Fact.
4. The question of the negligence of the defendant in this case and of the plaintiff was rightly submitted as one of fact to the jury.
J. E. Markham and F. W. Root, for appellant.
A city has the absolute right to determine what part of a street shall be devoted to team travel, what part to sidewalks, and what part to boulevards, grass plots, trees, and other suitable uses; and the plan adopted for such work is beyond judicial review, unless some distinct legal duty has been imposed and violated. Dougherty v. Trustees, 159 N.Y. 154; English v. City, 170 Ill. 131; McArthur v. City, 58 Mich. 357. Municipal corporations are not liable for obstructions in portions of the street or highway not part of the traveled path and not so connected with it that they will affect the security or convenience of those using the traveled path. A city is not liable for injury to a person, caused by his falling over an obstruction permitted by the city to be upon the grass plot or boulevard between the sidewalk and the traveled way, when the sidewalk is open, safe, and sufficient, and there is no excuse for his leaving the sidewalk, other than his own convenience. It is not claimed that the wire was dangerous to any one in the day time, but that it was made so at this time by reason of the darkness; this, notwithstanding that it is settled that a city is not bound to light any portion of its streets. McHugh v. City of St. Paul, 67 Minn. 441. The wire was not put there maliciously, for the purpose of injuring any one. It was there to serve a useful purpose in supporting the tree. While it was an obstruction, it was a lawful obstruction, because it was where the city had a legal right to have it. Aston v. City, 134 Mass. 507; Moran v. Inhabitants, 162 Mass. 196; Lowe v. Inhabitants, 136 Mass. 24; City v. Gregson, 31 Kan. 99; Smith v. Inhabitants, 7 Cush. 498; City v. Taylor, 62 Oh. St. 11; Wheeler v. Town, 30 Wis. 392; Morgan v. City, 57 Me. 375; Smith v. Inhabitants, 7 Cush. 498; Kellogg v. Inhabitants, 4 Gray, 65; Rhyner v. City, 97 Wis. 523; Philbrick v. Inhabitants, 63 Me. 477; Leslie v. City, 62 Me. 468; Macomber v. City, 100 Mass. 255; Keyes v. Village, 50 Mich. 439; Fitzgerald v. City, 51 Wis. 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 it prepared and maintained a good and sufficient roadway for teams, and ample and safe sidewalks and crosswalks for persons on foot. The sidewalk was designated, and obviously intended, for travel by pedestrians, and was without obstructions. The wire, although within the limits of the street as platted, was not in any traveled part of the street, nor so connected with it as to affect the safety or convenience of any one using either the roadway or sidewalk. In voluntarily departing from the sidewalk, and adopting the boulevard, plaintiff became a trespasser upon the rights, both of the city and the adjoining property owner. Ryan v. Preston, 32 Misc. (N.Y.) 92. There is nothing to warrant a finding that defendant was negligent. On the other hand, it is plain that plaintiff, in knowingly and purposely departing from the sidewalk and way provided by the city for pedestrians, assumed the risk of what might happen to her.
Daniel W. Doty and Thomas J. Wheeler, for respondent.
Defendant cites a large number of cases which involved injuries received by persons traveling in vehicles or on foot on highways chiefly in the country and in villages which had been reclaimed from their natural state and wrought for travel less than their full width, which portion, eight feet wide and upwards, is variously denominated in the books as "the traveled track," "the traveled way," and "the traveled path." The following cases cited by defendant are all of this class: Moran v. Inhabitants, 162 Mass. 196; Lowe v. Inhabitants, 136 Mass. 24; Smith v. Inhabitants, 7 Cush. 498; Wheeler v. Town, 30 Wis. 392; Keyes v. Village, 50 Mich. 439; Cartright v. Town, 58 Wis. 370; Rice v. Town, 19 Vt. 470; Brown v. Mayor, 57 Mo. 156. Such decisions on obstructions or dangerous places outside the "traveled track" have no application to a city street like Marshall avenue, where the full one hundred feet in width had been reclaimed from a state of nature and reduced to a perfect condition for pedestrians. So far as vehicles are concerned the "traveled way" on Marshall avenue is fifty-two feet wide, but as to pedestrians, the "traveled way" is one hundred feet wide. Nearly all the remaining authorities cited by defendant are cases involving injuries received by vehicles or their occupants from collision with some object outside the carriage way. The following are all of that class: Dougherty v. Trustees, 159 N.Y. 154; McArthur v. City, 58 Mich. 357; City v. Gregson, 31 Kan. 99; Macomber v. City, 100 Mass. 255. The negligence of the city and the contributory negligence of plaintiff were proper questions for the jury.
A pedestrian has a right to walk in the carriage way and in the boulevard and to cross both either in the center of the block or at a corner, and on the prepared crossings or not, as may suit his pleasure, convenience, or necessity, and in so doing he does not become a trespasser. When pedestrians do depart from the walks specially prepared for their use, they are required to exercise due care and prudence to avoid certain obstacles that may reasonably be expected to present themselves on the carriage way and boulevard. It follows from the last two propositions that, while the city is not bound to keep the boulevard free from all obstructions, as in the case of sidewalks, it has no right to maintain or permit others to maintain therein, and especially at a corner of a street, anything in the nature of a dangerous pitfall, a trap, or a snare from which a traveler might receive serious injury, and especially any obstruction unlikely to be perceived by a pedestrian in the exercise of a reasonable degree of prudence and caution. Whether or not this wire was such a dangerous construction for which the city was liable is a question for the jury. Raymond v. City, 6 Cush. 524; Brusso v. City, 90 N.Y. 679; City v. Mizee, 48 Kan. 435; Woodman v. Metropolitan, 149 Mass. 335, 339; Gerald v. City, 108 Mass. 580; Simons v. Gaynor, 89 Ind. 165; Nichols v. City of Minneapolis, 33 Minn. 430; Cleveland v. City of St. Paul, 18 Minn. 255 (279); Furnell v. City of St. Paul, 20 Minn. 101 (117).
In considering the authorities the difference should be noted between the rights of pedestrians and those of team travelers. While a teamster may not drive upon the sidewalk, a pedestrian may walk in the center of the street. This distinction will explain some of the apparently contradictory cases. The difference between a city street and the village or county road should also be noted. While the city is bound to keep the entire width of the street in repair, some of the cases hold that a village or town is obliged to keep in repair only the traveled portion of a highway. This distinction is well pointed out in the cases cited by appellant. Wheeler v. Town, supra; Bacon v. City, 3 Cush. 174, 176; Cartright v. Town, supra; Rice v. Town, supra. Plaintiff might also recover in this case on the theory of the negligence of the city in allowing a dangerous structure to exist so near the traveled path, even if it were not actually in the street. The city is liable for an injury caused by obstructions so close to or connected with the highway as to endanger travel. Lowe v. Inhabitants, supra; Wheeler v. Town, supra; Fairgrieve v. City, 39 Mo.App. 31; Foxworthy v. City, 31 Neb. 825.
The plaintiff, on the evening of December 2, 1899, while attempting to cross the street diagonally at the southwest corner of Marshall and Dewey avenues in...
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