Nelson v. City and County of Denver, 14949.

• Decision Date: 02 February 1942
• Docket Number: 14949.
• Parties: NELSON v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

122 P.2d 252

109 Colo. 113

NELSON v. CITY AND COUNTY OF DENVER.

No. 14949.

Supreme Court of Colorado, En Banc.

February 2, 1942

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Action by Ida Nelson against the City and County of Denver for personal injuries. Judgment of dismissal, and plaintiff brings error.

Reversed and remanded.

HILLIARD BAKKE, and BURKE, JJ., dissenting.

Stevens Park Kinney, of Denver, for plaintiff in error.

Malcolm Lindsey and Robert J. Kirschwing, both of Denver, for defendant in error.

YOUNG Chief Justice.

The parties appear here in the same relative positions as in the district court, and for convenience are designated as plaintiff and defendant, or Nelson and city.

Plaintiff instituted an action against the city to recover damages for personal injuries alleged to have been sustained by reason of a fall on a sidewalk which it is alleged the city negligently permitted to remain in a defective and dangerous condition. When the case was called for trial, defendant moved for judgment on the pleadings. The court sustained the motion and entered judgment dismissing the complaint and awarding costs to the city. Plaintiff assigns error on the ruling and judgment and seeks a reversal.

Section 158 of the charter of the City and County of Denver, as set forth and contained in the 1927 compilation of the Municipal Code, the same being Section 342 of the charter of March 29, 1904, provides as follows: 42 of the charter of March 29, 1904, provides within sixty days.

'(Section 342) Before the city and county

'158. Personal injuries--Damages--Notice injured upon any of the streets, avenues, alleys, sidewalks or other public places of the city and county, the person so injured or someone in his behalf, shall, within sixty days after receiving such injuries, give the mayor notice, in writing of such injuries stating fully in such notice, when, where and how the injuries occurred and the extent thereof.'

In compliance with the requirement contained in this section, plaintiff served a notice on the mayor of Denver, the part thereof pertinent to a determination of the issues here raised being as follows: 'That while walking upon the sidewalks of the City and County of Denver, State of Colorado, and more specifically the sidewalks directly in front of and upon the premises known as 761 and 763 Lafayette Street of said city and county, Ida Nelson, who resides at 745 Lafayette Street, Denver, Colorado, caught her toe on the edge of a cement slab of said sidewalk, which slab was raised approximately two inches above the level of the adjoining coment slab by the roots of trees; that said Ida Nelson was precipitated to the sidewalk as a result of so encountering said obstruction and as a result thereof suffered the following injuries, * * *'.

As to the purpose of such notice, the parties seem to be in agreement. The city, in its brief, correctly states it in these words: 'The object of the Charter provision requiring notice of personal injury is to require plaintiff to advise the City, through its executive officers, in what its alleged negligence consists, and afford it an opportunity at an early date to investigate the nature and cause of the injury, while the conditions remain substantially the same.'

Cases cited by plaintiff also support this proposition: City and County of Denver v. Bacon, 44 Colo. 166, 96 P. 974; City of Pueblo v. Babbitt, 47 Colo. 596, 108 P. 175; City and County of Denver v. Perkins, 50 Colo. 159, 114 P.484; City of Cripple Creek v. Loveless, 70 Colo. 482, 202 P. 705. See also, Krooner v. City of Waterbury, 105 Conn. 476, 136 A. 93.

In the complaint filed subsequent to the giving of notice, plaintiff alleged: 'That the edge of the concrete block of said sidewalk over which the plaintiff tripped was raised approximately three (3) inches above the level of the adjoining cement slab. The plaintiff had no knowledge of such raised slab or defect in the sidewalk at this place prior to this accident; that said raised slab constituted a dangerous peril to pedestrians walking over said sidewalk at night.'

The variance in the allegations in the notice that the cement slab of sidewalk 'was raised approximately two inches above the level of the adjoining concrete slab by the roots of trees,' and the allegation that it 'was raised approximately three inches above the adjoining cement slab,' apparently furnished the basis of the court's sustaining the motion to dismiss and the judgment entered thereon. It is the only reason urged by the city in its brief as supporting such ruling and judgment.

So to adjudge, it was necessary for the court to make several assumptions, among which are: (1) that an obstruction up to two inches in height can furnish no ground for recovery; and (2) that the words 'approximately two inches' used to describe the extent of the obstruction mean, as a matter of law, approaching, but not exceeding two inches.

Since the allegation in the complaint is that the obstruction was greater in extent than alleged in the notice, it unquestionably is sufficient to admit proof of its extent up to the limit of proof that might have been made had the allegation of the complaint on this point been identical with the allegation on the same point in the notice. the matter then resolves itself to this: If both notice and complaint had described the extent of the obstruction by the words 'approximately two inches' and the complaint still would be demurrable for want of statement of facts to constitute a cause of action under the law, then the court's action was right, otherwise it was wrong. Whether on the trial evidence of the obstruction being higher than approximately two inches would be admissible, under the present state of the pleadings we need not, and do not determine, for conceivably other factors, not now Before us, as for example, whether the city was in fact misled, might enter into a proper resolution of that issue, should it hereafter arise.

In the case of City and County of Denver v. Burrows, 76 Colo. 17, 227 P. 840, 841, we held that an upraised cement block one and three-eighths inches at the point where plaintiff struck her toe against it, was, as a matter of law, not a sufficient obstruction to render the sidwalk not reasonably safe for travel. True, in that case we said: 'An inequality of 2 inches or less has been held, as a matter of law, not to render it not reasonably safe for public travel. Northrup v. [City of] Pontiac, 159 Mich. 250, 123 N.W. 1107. See, also, Beltz v. City of Yonkers, 148 N.Y. 67, 42 N.E. 401, cited in [City of] Pueblo v. Smith, supra [57 Colo. 500, 143 P. 281].'

We did not hold, and if we had, the holding would have been dictum, that we would follow such cases further than as to an inequality of one and three-eighths inches. Furthermore, in that case we were speaking in the light of the evidence as to all the facts and circumstances of the case, for the cause had been tried, and presumably the evidence was in the record Before us. The general and, as we think, the controlling principle in such cases is set forth in our opinion in the case as follows: 'Mere irregularity and inequality of the surface of a way does not of itself make a city liable for damages sustained at such a place. A municipality is held only to the maintenance of a reasonably safe sidewalk. Griffith v. [City and County of] Denver, 55 Colo. 37, 44, 132 P. 57; [City of] Pueblo v. Smith, 57 Colo. 500, 143 P. 281. A defect in a street or sidewalk, to be actionable, must be such that a reasonably prudent person would anticipate danger from its existence. [City of] Denver v. Hyatt, 28 Colo. 129, 63 P. 403. Sometimes this is a question for the jury, as in Griffith v. [City and County of] Denver, supra, and sometimes the defect is such that, as a matter of law, it is not actionable, as was the case in [City of] Pueblo v. Smith, supra. Each case must be determined on the facts in evidence. [City and County of] Denver v. Hatter, 68 Colo. 194, 188 P. 728.'

With the principle thus announced in mind, we think it an unreasonable constrction of the opinion to say that it lays down the proposition that, whether permitting an inequality or raised block in a sidewalk, constitutes actionable negligence may be determined simply with a foot rule. If the case is to be so construed, it means that a two inch inequality in the sidewalk in front of an old ladies' home, used daily by the aged and infirm, and a two inch inequality in the wholesale district in a sidewalk used by able-bodied truckers and produce men, accustomed to carrying heavy loads over rough and uneven surfaces, are on a parity, so far as permitting an inference of negligence is concerned, and that both inequalities may be observed, measured, and up to two inches, permitted to continue with impunity. The case is not authority for such a proposition.

However if it be assumed that a...