Morgan v. City of Lewiston

• Decision Date: 28 May 1898
• Citation: 40 A. 545,91 Me. 566
• Parties: MORGAN v. CITY OF LEWISTON.
• Court: Maine Supreme Court

40 A. 545

91 Me. 566

MORGAN

v. CITY OF LEWISTON.

Supreme Judicial Court of Maine.

May 28, 1898.

(Official.)

Report from supreme judicial court, Androscoggin county.

Action by Lena M. Morgan against the city of Lewiston.

This was an action on the case to recover damages for an injury to the plaintiff, on the evening of December 31, 1895, while traveling along Park street towards Main street, in the city of Lewiston, caused by her feet striking against a plank crosswise of the Park street walk, at its junction with the inside line of the sidewalk on Main street, placed there edgewise for the purpose of holding the brick of the Main street walk in place, and projecting above the surface of the Park street walk, with a perpendicular face towards Park street from five and one-half inches on the inside to two inches in the middle of the walk and three-fourths inches on the outside. The notice served upon the municipal officers by the plaintiff, according to the statute, is as follows:

"You are hereby notified that at about six o'clock on the evening of December 31, 1895, while walking in a northerly direction along the sidewalk located on the easterly side of Park street, in said Lewiston, my feet encountered an obstruction and defect in said sidewalk which caused me to be thrown violently to the ground, thereby receiving injuries to my left leg, for which I claim damages from the city of Lewiston.

"Said injuries consisted of a bruise to the flesh and a spraining of the ligaments of my left knee, and a bruise to the flesh of my left leg from the knee to the ankle, and a complete fracture of the tibia or front bone of the left leg, about half way between the knee and ankle; and of a bruise to the flesh and a spraining of the ligaments of my leftankle. [Here follows a description of the defect in the street or way.]

"Dated at Lewiston, Maine, this 7th day of January, 1896.

"Lena M. Morgan."

Case reported. Judgment for defendant.

W. H. Newell and W. B. Skelton, for plaintiff.

Harry Manser, City Sol., for defendant.

WISWELL, J. Action to recover for personal injuries sustained by the plaintiff through an alleged defect in a street of the defendant city.

The defective condition complained of is that, at the junction of Main and Park streets, the sidewalks were not on the same level. The Main street walk was of brick, constructed about a month prior to the accident, with a plank at the outside of the walk, at the junction, set upon edge, with the top of the plank flush with the surface of the walk, for the purpose of retaining the brick in place. The Park street walk was of earth, with ashes placed next to the brick sidewalk and extending back on the Park street sidewalk for about six feet.

This latter sidewalk at the junction was slightly lower than the surface of the brick sidewalk. The difference in level varied somewhat because the dirt sidewalk was rounding, being higher in the middle and on one side than on the other. The Park street walk upon one side and in the middle was from 1 to 2 inches lower than the Main street walk, and upon the extreme outside of the Park street walk it was 5 1/2 inches lower than the top of the plank. Two feet in from this extreme outside the difference in level was but 2 3/4 inches, the whole width being about 6 feet.

The first question is whether or not the condition above described was a defect, within the meaning of the highway statute. Rev. St. c. 18. The case comes to the law court upon report, and we are given jury powers in passing upon all questions of fact.

This court has always held that the statute which requires cities and towns to keep their ways "safe and convenient for travelers" (Rev. St. c. 18, § 52) means reasonably, not absolutely, safe. Was this particular place, taking into account its location and all surrounding circumstances, reasonably safe for persons having occasion to pass over it, who upon their part were in the exercise of due care? We think it was. These sidewalks were upon different streets. In our opinion, it would be...