Miller v. Village of Mullan

• Decision Date: 15 October 1909
• Citation: 17 Idaho 28,104 P. 660
• Parties: OLIVE D. MILLER and GEORGE T. MILLER, Respondents, v. THE VILLAGE OF MULLAN, Appellant
• Court: Idaho Supreme Court

104 P. 660

17 Idaho 28

OLIVE D. MILLER and GEORGE T. MILLER, Respondents, v. THE VILLAGE OF MULLAN, Appellant

Supreme Court of Idaho

October 15, 1909

ACTION FOR DAMAGES-DEFECTIVE STREET CROSSING-NEGLIGENCE OF VILLAGE AUTHORITIES-IMPLIED NOTICE OF DEFECTS-ITEMIZED STATEMENT OF CLAIM-FILING CLAIM WITH VILLAGE COUNCIL-EVIDENCE.

1. In order to hold a village liable for an injury sustained through defects in a street crossing, of which defect it had no actual notice, it should be shown that the defect was so obvious and existed for such a length of time as to indicate that the authorities knew, or ought to have known, of the danger, and had known it long enough to have repaired it.

2. While it is a matter of common knowledge that board sidewalks and crossings ordinarily used in villages and cities of this state will rot and decay in course of time, still the length of time in which they will become dangerous and unsafe is so indefinite and uncertain, and subject to so many influences either advancing or retarding the process of decay, that no fixed and definite length of time can be established as a specific time at and after which the walk will become unsafe. The question of the unsafe condition of the walk caused by reason of age and decay is purely a question of fact, to be submitted to the jury in each specific case depending upon the special circumstances of the particular case.

3. The municipalities of this state cannot be held chargeable with notice of the time when and conditions under which a wooden sidewalk or cross-walk will cease to be safe for pedestrians merely on account of age and consequent decay where no patent and obvious defect is apparent.

4. In order to impose liability on the municipality for injuries sustained on a cross-walk by reason of the rotten and decayed condition of the lumber and boards out of which the walk was constructed, and where there is no particular or specific patent defect, it must appear that the condition of the walk was such that danger might reasonably be apprehended at any time, and that a reasonably prudent person would have repaired it and guarded against the danger.

5. The question of the frequency of the inspections and examinations of sidewalks and street crossings that should necessarily be made by municipal authorities is a question of fact to be determined by the jury under the particular conditions and circumstances of each case.

6. While it is the duty of villages and cities to maintain their sidewalks and cross-walks in a reasonably safe condition, the care and precaution which would constitute reasonable diligence with reference to the repair and safety of a walk in a remote part of the town or village, where the walk is but little used, would not ordinarily amount to reasonable care and diligence with reference to a walk or crossing in the heart of the town where the entire population passes over it daily.

7. Where the village asked the court to give the jury an instruction on the question of its negligence in reference to sidewalks and streets, which instruction contained the following sentence: "A village is not guilty of negligence for a failure to build sidewalks on all its streets, but where it has constructed a walk it must be kept in a reasonably safe condition," it was error for the court to strike out the word "reasonably" and then give the requested instruction as thus modified. Municipalities are not insurers of the condition of their streets and walks, and the most that can be required is to maintain them in a "reasonably safe" condition.

8. The provisions of sec. 4209, Rev. Codes, requiring the adverse party to serve an itemized statement of the account sued on within ten days after demand therefor are not mandatory but are directory, and vest a discretion in the trial court as to whether or not it should inflict the extreme penalty excluding evidence of such an account, where the party has failed to serve the statement within the time required.

9. The provisions of sec. 2263 of the Rev. Codes, requiring that an itemized statement of a claim against a city or village duly verified by the oath of the claimant must be presented to the city or village authorities before suit is commenced thereon do not apply to an action in tort for a personal injury sustained on account of defective streets or sidewalks.

10. The evidence of "rumors" as to the condition of a sidewalk or street crossing is not admissible in an action against a city or village for damages sustained on account of a defective walk.

11. In a case where there is no dispute as to the particular place at which an injury occurred on a sidewalk or cross-walk evidence of the defective or unsafe condition of the sidewalk at other places within that vicinity is incompetent and inadmissible, except it be in a case where it is claimed that the defect was not a special one, but was due rather to the general decayed and bad condition of the whole walk, of which the particular place where the injury was suffered was a part.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for the County of Shoshone. Hon. W. W. Woods, Judge.

Action by plaintiff to recover damages for personal injury sustained while traveling over a cross-walk in the defendant village. Judgment for plaintiff. Defendant appealed. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellant.

A. G Kerns, and A. T. Ryan, for Appellant.

Notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability. (2 Dillon on Mun. Corp., 3d ed., sec. 1024.) The corporation, in the absence of a controlling enactment, is responsible only for a reasonable diligence to repair the defect or prevent accidents after the unsafe condition of the street is known, or ought to have been known to it, or to its officers having authority to act respecting it. (2 Dillon on Mun. Corp., 3d ed., sec. 1025.)

Where a defect in a cross-walk or sidewalk is a latent one, the municipality is not liable, unless there is evidence charging it with notice. (Elliott on Ev., sec. 2513; Hanscom v. Boston, 141 Mass. 242, 5 N.E. 249; Stanton v. Salem, 145 Mass. 476, 14 N.E. 519; Cook v. City of Anamosa, 66 Iowa 427; 23 N.W. 907; Jones v. City of Greensboro, 124 N.C. 310, 32 S.E. 675; Joliet v. Walker, 7 Ill.App. 267; Bigelow v. City of Kalamazoo, 97 Mich. 121, 56 N.W. 339; Weisse v. City of Detroit, 105 Mich. 482, 63 N.W. 423; Bucher et al. v. City of South Bend, 20 Ind.App. 177, 50 N.E. 412; Hembling v. City of Grand Rapids, 99 Mich. 292, 58 N.W. 310; Lohr v. Borough of Philipsburg, 165 Pa. 109, 30 A. 822; City of Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324; Cunningham v. Denver, 23 Colo. 18, 58 Am. St. 212, 45 P. 356; Cramer v. City of Burlington, 39 Iowa 512; Carvin v. City of St. Louis, 151 Mo. 334, 52 S.W. 210; Burns v. City of Bradford, 137 Pa. 361, 20 A. 997, 11 L. R. A. 726.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

Respondents recovered judgment in the trial court for $ 1,500 damages on account of personal injuries received by Olive D. Miller, wife of respondent George T. Miller, by falling on a defective street crossing. Mrs. Miller, in company with her two grown daughters and her infant daughter, was traveling on the Second street crossing over Pine street in the Village of Mullan, and stepped on a board which broke, and fell and broke her leg immediately above the ankle and sustained other bruises and injuries.

On the corner at one end of this crossing stood a candy store, and at the other end of the crossing and on the opposite side of Pine street stood the electric light plant. Mrs. Miller and her daughters had come down Pine street and the girls had preceded her several feet and were on the cross-walk, having passed over the place where respondent was injured only a few seconds later. The cross-walk seems to have consisted of three two by twelve inch boards, side by side, extending lengthwise across the street. Respondent testifies that she went upon the crossing from the side of the street on which the candy store was located, and that at a distance of about three feet from the sidewalk one of the boards broke and she fell and sustained the injuries of which she complains. She also says that she did not notice any defect in the walk before receiving the injury, and that she had passed over it several times before during the last preceding thirteen days. The girls testified that they did not notice any danger or defect in the walk as they passed over it and that they had also passed over it several times before that, but had not noticed anything wrong with the walk at that place.

This particular cross-walk seems to have been quite old, and had some holes broken in it toward the end next to the electric light building, but no one claims that any holes or breaks were visible at the end or near where this board broke and Mrs. Miller received her injuries. After the accident it was discovered that the board was well rotted on the under side and that the sill or cross-piece on which the boards rested at this point was also rotten, and had not been sufficient to support the board with the added weight of Mrs. Miller. No contention is made that there was any patent or visible defect in the crossing at the point where the injury occurred. The cause of action appears to have been prosecuted on the theory that the crossing contained a latent defect namely, rotten and decayed boards and sills, which an ordinary pedestrian could not, and would not be expected to,...