Osier v. Consumers' Co.

• Decision Date: 01 August 1925
• Citation: 239 P. 735,41 Idaho 268
• Court: Idaho Supreme Court
• Parties: DELVINA OSIER and JOHN OSIER, Her Husband, Respondents, v. THE CONSUMERS' COMPANY, a Corporation, and the CITY OF COEUR D'ALENE, a Municipal Corporation, Appellants

239 P. 735

41 Idaho 268

DELVINA OSIER and JOHN OSIER, Her Husband, Respondents, v. THE CONSUMERS' COMPANY, a Corporation, and the CITY OF COEUR D'ALENE, a Municipal Corporation, Appellants

Supreme Court of Idaho

August 1, 1925

DAMAGES FOR PERSONAL INJURIES-NEGLIGENCE-SPECULATION AS TO CAUSE-PROBABLE CAUSE-CONTRIBUTORY NEGLIGENCE-NONSUIT-QUESTION OF FACT-AUTHORITY GRANTED BY FRANCHISE - NEGLIGENT INSTALATION AND MAINTENANCE-INSTRUCTIONS-PRESUMPTION AS TO DEFECT.

1. Negligence is a fact to be proven, either by direct or circumstantial evidence, and not presumed on conjecture or speculation; but if there be proof of probable cause, whether an injury resulted in consequence of the established cause may be left to reasonable inference.

2. A verdict may not rest upon pure speculation, but the correlative is also true that a verdict resting upon competent evidence may not be set aside upon pure speculation.

3. Contributory negligence is a matter of defense and the burden of proving contributory negligence rests upon the defendant unless it is shown by plaintiff's evidence.

4. It is a well-settled rule in this state that a person injured will not be precluded from recovery on the ground of contributory negligence, unless it was such that upon consideration of all of the facts and circumstances as they appeared at the time a reasonably prudent person would not have acted as did the injured party; and only when it appears upon the undisputed facts that a reasonably prudent person would have acted differently does it become a question of law.

5. The use of a street, sidewalk or crossing known to be defective or obstructed, which is not so obviously dangerous that no prudent person would attempt to use it, is not negligence as a matter of law which will bar a recovery for an injury caused by the defect or obstruction.

6. Authority granted by a franchise to place service-pipes in the sidewalk area does not excuse a water company from its negligent instalation or maintenance of such service-pipe.

7. While a party may indulge in a presumption that a street on which he travels is not defective, an instruction to this effect is misleading and inapplicable where the person knew of the existence of the defect in question.

8. Instructions examined and certain ones approved and certain ones held erroneous.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action for damages for personal injuries. Judgment for respondent. Reversed and remanded for new trial.

Reversed and remanded. Costs awarded to appellant. Petition for rehearing denied.

Edward H. Berg and Danson, Williams, Danson & Lowe, for Appellant.

There was no evidence that Mrs. Osier stumbled over the service-box, except conclusions. A nonsuit should have been granted, since the jury's verdict could not have been supported by guess or surmise. (Antler v. Cox, 27 Idaho 517, 149 P. 731, and cases cited; Parnielee v Chicago, M. & St. P. R. Co., 92 Wash. 185, 158 P. 977 and cases cited.)

Respondent was guilty of contributory negligence, as a matter of law and a nonsuit should have been ordered on that ground. (City of Knoxville v. Cain, 128 Tenn. 250, 159 S.W. 1084, 48 L. R. A., N. S., 628; Collins v. City of Janesville, 111 Wis. 348, 87 N.W. 241, 1087; City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Wheat v. City of St. Louis, 179 Mo. 572, 78 S.W. 790, 64 L. R. A. 292; Lyon v. City of Grand Rapids, 121 Wis. 609, 99 N.W. 311; Robb v. Borough of Connellsville, 137 Pa. 42, 20 A. 564; Kennedy v. City of Philadelphia, 220 Pa. 273, 69 A. 748, 17 L. R. A., N. S., 194; Reynolds v. Los Angeles Gas & Electric Co., 162 Cal. 327, Ann. Cas. 1913D, 34, 122 P. 962, 39 L. R. A., N. S., 896; 20 R. C. L., secs. 93, 94, 96, 108-112.)

The service-box was installed under a valid ordinance of the city and if the instalation was within the authority of the franchise, appellant would not be liable. (City of Lewiston v. Isaman, 19 Idaho 653, 115 P. 494.)

Instruction No. 23 required the jury to award damages for any mental pain and suffering. This was not within the issues, nor was there any evidence authorizing it, nor were the facts such as it could be assumed that there was any mental pain or suffering. (Bennett v. Oregon Washington R. & N. Co., 83 Wash. 64, 145 P. 62; Southern Ry. Co. v. Crowe, 51 Ind.App. 300, 99 N.E. 762; Muse v. Ford Motor Co., 175 N.C. 466, 95 S.E. 900; 38 Cyc. 1614; 17 C. J. 1066; 14 R. C. L., p. 784, sec. 50; Tarr v. Oregon Short Line Ry. Co., 14 Idaho 192, 125 Am. St. 151, 93 P. 957.)

Ezra R. Whitla and Roger G. Wearne, for Respondents.

In this state contributory negligence is generally a question of fact for the jury. (Donovan v. Boise City, 31 Idaho 324, 325, 171 P. 670; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981; Smith v. Oregon Short Line R. Co., 32 Idaho 695, 187 P. 539; Bressan v. Herrick, 35 Idaho 217, 205 P. 555.)

"A person may walk or drive carefully in the darkness of the night, relying upon the belief that the corporation has performed its duty, and that the street or the sidewalk is not in an unsafe condition." (Dillon on Municipal Corporations, par. 1007.)

The maintenance of a gas service-box in the street is actionable negligence. (Loan v. Boston, 106 Mass. 450.)

Previous knowledge of the dangerous place in a street or sidewalk is not per se evidence of such negligence as will preclude a recovery except in those cases where the known defect is so great as to prevent a reasonably diligent person from attempting to pass over such street or sidewalk in any usual manner. (Rysdyke v. Town of Mt. Hope, 61 N.Y.S. 645; Bush v. Independent Mill Co., 54 Wash. 212, 103 P. 45; Carson v. City of Genesee, 9 Idaho 244, 108 Am. St. 127, 74 P. 862; Carscallen v. Coeur d'Alene Elec. Co., 15 Idaho 444, 16 Ann. Cas. 544, 98 P. 622.)

The question is for the jury. (Dundas v. City of Lansing, 75 Mich. 499, 13 Am. St. 457, 42 N.W. 1011, 5 L. R. A. 143; Village of Orleans v. Perry, 24 Neb. 831, 40 N.W. 417; Shook v. City of Cohoes, 108 N.Y. 648, 15 N.E. 531; Maultby v. City of Leavenworth, 28 Kan. 745; Kelly v. Southern Minn. Ry. Co., 28 Minn. 98, 9 N.W. 588; McQuillan v. City of Seattle, 10 Wash. 464, 45 Am. St. 799, 38 P. 1119; Maloy v. City of St. Paul, 54 Minn. 398, 56 N.W. 94; City of Denver v. Soloman, 2 Colo. App. 534, 31 P. 507.)

Anyone attempting to justify the erection in the street of anything obstructing or interfering with the public must show a clear right thereto by the grant under which he claims. (Wabash Ry. Co. v. City of Defiance, 52 Ohio 262, 40 N.E. 89; Clark v. City of Los Angeles, 160 Cal. 30, 116 P. 722; Ex parte Russell, 163 Cal. 668, Ann. Cas. 1914A, 152, 126 P. 875; Knoxville Water Co. v. City of Knoxville, 200 U.S. 22, 26 S.Ct. 224, 50 L.Ed. 353.)

"The public grant of a franchise, either by a constitution, statute or municipal ordinance, is to be strictly construed in favor of the public, and nothing passes by implication." (Boise City v. Boise Artesian H. & C. W. Co., 186 F. 705, 108 C. C. A. 523; Madera Water Co. v. City of Madera, 185 F. 281; Congreve v. Morgan, 18 N. J. 84, 72 Am. Dec. 495.)

Where one has a dangerous instrumentality in the street, he is bound to keep it safe and is liable to anyone injured thereby if he does not do so. (Horn v. Boise City Canal Co., 7 Idaho 640, 65 P. 145; Perry v. Peoples G. L. & C. Co., 119 Ill.App. 389; Wickwire v. Town of Angola, 4 Ind.App. 253, 30 N.E. 917; Baumeister v. Markham, 101 Ky. 122, 72 Am. St. 397, 39 S.W. 844, 41 S.W. 816; Rock v. American Construction Co., 120 La. 831, 45 So. 741, 14 L. R. A., N. S., 653; Wile v. Los Angeles I. & C. S. Co., 2 Cal.App. 190, 83 P. 271; City of Portland v. Richardson, 54 Me. 46, 89 Am. Dec. 720.)

GIVENS, J. William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ., concur. Budge, J., did not sit.

OPINION

GIVENS, J.

This action was commenced by respondents Delvina Osier and John Osier, her husband, against the Consumers' Company and the city of Coeur d'Alene to recover damages for personal injuries sustained by respondent, Delvina Osier, caused on January 8, 1923, between 4 and 5 o'clock in the afternoon, by her tripping and stumbling over a water service-box of the Consumers' Company, which box was located in that part of the street ordinarily occupied by the sidewalk, there being no sidewalk built, however. From a judgment on a verdict for $ 5,548.50 in favor of respondents against the water company but not against the city and an order denying a new trial the company appealed.

Appellant assigns as error the denial of its motion for nonsuit, motion for a new trial, and requested peremptory instruction for a verdict in its favor, all based on the proposition that there was no competent evidence showing that Mrs. Osier's fall was due to the service-box, and that the verdict of the jury rested solely upon conjecture and speculation.

In support of this contention, Antler v. Cox, 27 Idaho 517, 149 P. 731, is cited, where it was held that the court did not err in granting a nonsuit, on the theory that whether or not the jumping of a horse was the proximate cause of the injury or whether the cause was the failure of respondents to furnish proper appliances, since the appellant might have still been injured by the jumping of the horse if the alleged proper appliances had been provided, no proximate cause was shown, and this case is not applicable to the situation herein. Further appellant cites Parmelle v. Chicago, M. & St. P. Ry. Co., 92 Wash. 185, 158 P. 977, wherein the court says:

"Negligence is a fact to be proven either by direct or circumstantial evidence and not presumed on conjecture or speculation; but, if there be proof of probable cause, whether an injury...