Neidhardt v. City of Minneapolis
| Decision Date | 19 August 1910 |
| Docket Number | 16,670 - (218) |
| Parties | E.M. NEIDHARDT v. CITY OF MINNEAPOLIS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $5,000 for personal injuries sustained in the nighttime by falling into a hole in Minnehaha boulevard, under the bridge on Nicollet avenue. The complaint alleged the existence of the hole for a long time to the knowledge of defendant city and that the injury occurred without contributory negligence on the part of plaintiff. The answer expressly denied that plaintiff had been damaged in the sum of $5,000, or in any sum whatever, and alleged that if she met with an accident it was occasioned by her own negligence.
The bridge mentioned in the opinion is about twenty-five feet above the parkway. It is situated five and one-fourth miles from the center of defendant city and about one thousand fifty feet from the southern boundary of the city. The locality is more or less wooded. The travel on the boulevard is mostly pleasure travel. There is comparatively little foot travel. The other facts are stated in the opinion.
The case was tried before Simpson, J., and a jury which returned a verdict in favor of plaintiff for $2,250. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Grading rural ways.
A municipality is not required to exercise the same care in grading and constructing a rural way as when improving a street in the populous portions of the city.
Grading rural ways -- width of roadway.
In improving and maintaining such roadways the city is not required to grade or improve to the entire width of the highway.
Grading rural ways -- covered culvert.
A covered culvert, extending across a rural driveway and ending abruptly seven and one-half feet beyond the line of the way improved for travel, ordinarily would not be held negligent construction.
Question of negligence for the jury.
In this instance the culvert was placed at a part of the driveway which was crossed by a substantial bridge. This and other circumstances surrounding the place made defendant's negligence a question for the jury.
Proximate cause of injury.
Where one upon a highway is forced off to the side of the traveled way by a rapidly approaching vehicle, and is injured by falling into an opening upon the side of the traveled way the negligence, if found, in leaving the opening unguarded, was the proximate cause of the injury.
Negligence of pedestrian.
It is not, as between a pedestrian and the municipality, negligence as a matter of law to walk upon the left side of a street or driveway, nor, for the purpose of avoiding a rapidly approaching vehicle, to turn to the left.
Frank Healy, City Attorney, A. C. Finney and Clyde R. White, Assistant City Attorneys, for appellant.
Larrabee & Davies, for respondent.
Plaintiff had a verdict because of personal injuries sustained upon a public driveway in Minneapolis under the following circumstances: Minnehaha boulevard, of the park system of the city, intersects Nicollet avenue at right angles. The park driveway following the windings of Minnehaha creek crosses Nicollet avenue under a substantial bridge twenty-five feet high, which forms the continuation of the avenue. The water from the street is conducted to a drain beneath the bridge, and by the drain to a culvert crossing the park driveway beneath its surface, and thence to the creek. The drain is midway between the lines of Nicollet avenue, and is formed of concrete or masonry, open from the bridge abutments upon the north to a point from four to seven and one-half feet north of the north line of the driveway, where it is sunk to a catch-basin where the covered culvert begins, and is so built that it constitutes no obstruction in the boulevard. Two concrete piers of the bridge are just north of the catch-basin, one on each side of the drain. The length of the covered portion of the culvert is thirty-three feet. It is three and one-half feet wide at its north end. The distance from the top of the culvert to the bottom of the open drain, where the catch-basin is located, is twenty-two inches. The driveway is through a strip of land known as Minnehaha parkway. The parkway is much wider than the road, which the testimony shows to be from twenty-two to twenty-five feet wide. Most of the road is bordered by grass; but at the intersection of the streets, where the culvert is situated, there are no grass borders to the driveway. Plaintiff, with some companions, was walking after nightfall upon the driveway. She was going eastwardly upon the north, and therefore to her left side of the road, and intended to reach Nicollet avenue by a flight of steps upon the east side of the bridge. When upon or at the culvert, an automobile traveling westwardly, and therefore properly upon the same side of the driveway as the plaintiff, approached at a high rate of speed, and, plaintiff claims, swerved directly toward her. To avoid the machine plaintiff stepped, or perhaps sprang, to the north, and fell into the open drain just at the edge of the covered culvert, where the catch-basin is located, and received serious injuries.
1. The first question presented is as to any negligence by defendant. It is entirely true, as claimed by counsel, that in constructing this park driveway the city was not required to finish it with the care and detail necessary in constructing a street in a built-up and populous portion of the city, but neither can it be held to be an ordinary country road. Ordinarily it would not be negligent to locate and leave unguarded a culvert of this character crossing a rural driveway and extending beyond the sides of the road the distance shown here; but the catch-basin into which plaintiff fell, while outside the line of the driveway, was within the lines of Nicollet avenue. The surface of the soil covering the culvert for its entire length, judging from the photographs presented, particularly defendant's Exhibit 4, was flush with the ground upon each side. The grass borders to the driveway did not extend under the bridge. One might well anticipate that no such condition existed at this particular place, and, even if plaintiff had fallen without any sudden danger or emergency confronting her, we feel the question of defendant's negligence would have been for the jury.
The authorities cited by counsel for defendant are not, as we read them, in conflict with this holding.
In King v. Village, 180 N.Y. 496, 500, 73 N.E. 481, 482, it appeared the plaintiff, without any cause shown, left the roadway and allowed his team to travel for one hundred feet upon the side of the road. In holding there was no liability for the subsequent accident which occurred, the court said: Howard v. North Bridgewater, 16 Pick. 189, was a case in which plaintiff sought damages for injuries to his horse, which ran upon some large stones within the lines of the highway, but outside of the graded roadway, and between which and the roadway was the gutter. These and other cases cited are authority for holding that it is not necessary to grade such roadways to their entire width, and that ordinarily one who voluntarily leaves the beaten path and is injured cannot recover; and, again, where there is no hidden danger, nor any peculiar situation which rendered the construction dangerous, one who mistakenly leaves or by some emergency is forced from the beaten track cannot recover. Sutphen v. North Hempstead, 80 Hun, 409, 30 N.Y.S. 128; Zettler v. Atlanta, 66 Ga. 195; Nelson v. Spokane, 45 Wash. 31, 87 P. 1048, 8 L.R.A. (N.S.) 636, 122 Am. St. 881; Monongahela v. Fischer, 111 Pa. St. 9, 2 A. 87, 56 Am. Rep. 241; Macomber v. Taunton, 100 Mass. 255.
These cases are in harmony with the rule in this state as announced in Tarras v. City of Winona, 71 Minn. 22, 73 N.W. 505, where it was held that the city was not guilty of negligence in failing to maintain railings or other barriers along the sides of the embankments of a public road leading from the city; the embankment being seven feet high, thirty-three feet wide, and the entire width of the highway sixty-six feet. The same general principles were recognized in McHugh v. City of St. Paul, 67 Minn. 441, 70 N.W. 5.
The case of Ray v. City of St. Paul, 40 Minn. 458, 42 N.W. 297, is, we think, nearer to the case at bar. While the general rules spoken of were accepted in the Ray case, it was held on demurrer that the city might be liable where refuse was permitted to be deposited at the end of a street upon the river bank, giving it the appearance of a prolongation and part of the street, and was dangerous to any one stepping upon it. The rule as to liability for accidents caused by excavation or obstructions contiguous to a street or well-defined road is, as claimed by counsel, that ordinarily the municipality is not liable if...
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