Miller v. City of Duluth
| Decision Date | 17 November 1916 |
| Docket Number | No. 19932 [50].,19932 [50]. |
| Citation | 159 N.W. 960,134 Minn. 418 |
| Parties | MILLER v. CITY OF DULUTH. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, St. Louis County; Bert Fesler, Judge.
Action by Sam Miller against the City of Duluth. From an adverse order, defendant appeals. Affirmed.
A city is not obliged to grade or improve all platted streets within its limits. If, however, an ungraded street is frequented by travel and the city have notice of the fact, it must keep such street in a reasonably safe condition for travel.
A city is not generally bound to improve and made fit for travel the whole width of an outlying street. If it improves and keeps in condition a roadway of a sufficient width for the ordinary demands of travel, that is sufficient. But, it must not create or suffer any pitfall within the traveled portion, or so near to it that a traveler, though in the exercise of due care, may fall therein.
It is negligence for a city to permit an excavation four feet deep in the middle of a traveled road, with the bank above the excavation only sixteen feet wide, without guard or railing, and without light at night where the course of travel and the surrounding conditions are in the nature of an invitation to pass along the top of the bank. John E. Samuelson, Leonard McHugh, and M. T. O'Donnell, all of Duluth, for appellant.
A. E. Parker, of Duluth, for respondent.
Tenth street, between Eighth and Ninth Avenues East, in Duluth, was, in 1914, an ungraded street. It had been traveled, however, for many years, and was in a district where some homes had been built. Prior to 1914, the traveled road ran through the center of the street. In the spring of 1914 the city laid a sewer in the center of the street, and in filling above it left a ridge about three feet high from one end of the block to the other. This caused travel to form two beaten roadways, one on each side of the sewer ridge. Travel going east went on the south side of the ridge all the way through the block. Travel going west went on the north side of the sewer ridge from Ninth street until it reached a point somewhere near the middle of the block. From this point to the west end of the block an excavation or cut lengthwise of the street was made many years ago. By whom it was made the evidence does not disclose. Travel had passed through the cut for years. When the sewer ridge was made, it likewise passed through the cut. The cut was forty-five feet wide at the top, not the full width of the street. While the sewer ridge ran through the center of the street, the cut did not run centerwise of the street, but was more to the south than to the north side. In fact it appears that there was not room for a roadway in the space between the ridge and the north wall of the cut, but that there was room on the south side of the ridge. The result was that when the west-bound travel reached the cut, instead of proceeding straight ahead, it crossed the ridge to the south side, and from there on west there was but one traveled track. Had this westbound roadway gone straight ahead, instead of crossing over the sewer ridge, it would have gone on the bank outside of the cut to the north, which bank was at this point about sixteen feet wide. There were some wheel tracks that did take this course. Plaintiff was traveling west on this street at night. It was very dark and there were no street lights at this point. He followed the west-bound beaten track on the north side of the street until he reached the cut. Then, instead of crossing the ridge to the south track and through the cut, he kept on straight ahead and along the top of the bank. The top of the bank was about four feet above the bottom of the cut. It was unguarded. Plaintiff claims that while going along the top of the bank the left wheel of his wagon went over the bank, the wagon was overturned and plaintiff was injured. He recovered a verdict. Defendant appeals.
The questions of law in the case are well settled.
1. The city is obliged to exercise reasonable care to keep its traveled streets in safe condition for travel. It is not obliged, however, to grade or improve or keep in condition platted or dedicated streets within its limits which have never been traveled. City of St. Paul v. Seitz, 3 Minn. 297 (Gil. 205), 74 Am. Dec. 753. If, however, an ungraded street is frequented by travel, and the city has notice of the fact, it must keep such street in reasonably safe condition for travel. Tenth street was such a street. It had been traveled for many years. The travel was considerable and it was...
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