Powers v. Boise City

• Decision Date: 09 July 1912
• Citation: 22 Idaho 286,125 P. 194
• Parties: MARY A. POWERS, Respondent, v. BOISE CITY, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

125 P. 194

22 Idaho 286

MARY A. POWERS, Respondent, v. BOISE CITY, a Municipal Corporation, Appellant

Supreme Court of Idaho

July 9, 1912

PERSONAL INJURIES-NEGLIGENCE OF CITY-ARGUMENT OF COUNSEL-SIDEWALK-OBSTRUCTION OF-NOTICE OF OBSTRUCTION-CONSTRUCTIVE NOTICE-CITY-POWERS OF-PRIMARY LIABILITY-INSTRUCTIONS.

(Syllabus by the court.)

1. Held, that the city was not prejudiced by the remarks made by counsel for respondent in his argument to the jury.

2. The doctrine or rule laid down by this court in Goldstone v Rustemeyer, 21 Idaho 703, 123 P. 635, in regard to improper remarks made by counsel during argument to the jury approved.

3. Boise City must exercise reasonable care to discover obstructions or defects in its streets and sidewalks, and if such obstructions or defects remain for any considerable length of time, it is at least constructive notice to the city of such obstructions or defects.

4. As to whether the city has constructive knowledge of obstructions or defects in streets and sidewalks is a question for the jury.

5. Under the charter of Boise City, the city had power to manage and regulate its streets and sidewalks, and the privilege or power so granted imposes a corresponding obligation on the part of the city, and such power is coupled with the implied obligation that ordinary care at least will be exercised in keeping the streets and sidewalks clear of obstructions and defects, and if it fails to do so, it is liable for personal injuries occasioned thereby.

6. The city being liable for such injuries should prove a spur to the officials to keep the streets and sidewalks in a safe condition.

7. Where a street or sidewalk is obstructed by other persons and the city has either actual or constructive notice thereof, it is primarily liable for injuries resulting therefrom regardless of whether the abutting owner or a police officer or the person who placed the same there is liable to the city.

8. Held, that the court did not err in refusing to instruct the jury to return a verdict for the defendant.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action to recover for personal injuries occasioned by an obstruction on a sidewalk. Judgment for the plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Charles F. Reddoch and P. E. Cavaney, for Appellant.

There is no evidence showing or tending to show that Boise City had any knowledge, actual or constructive, that the piece of wire which was the proximate cause of the accident was obstructing the street or sidewalk of Boise City at any time prior to the accident herein complained of.

In an action for injuries, caused by defects or obstructions, municipalities must have had notice, actual or constructive, of condition or defect. (28 Cyc. 1477; Mitchell v. Bray, 124 Ky. 411, 124 Am. St. 408, 99 S.W. 266, 13 L. R. A., N. S., 751; City Council v. Comer, 155 Ala. 422, 46 So. 761, 21 L. R. A., N. S., 951; Carvin v. St. Louis, 151 Mo. 334, 52 S.W. 210.)

Obstruction must be notorious before the municipality is bound to take notice of it. (Burns v. Bradford, 137 Pa. 361, 20 A. 997, 11 L. R. A. 726; Cook v. Anamosa, 66 Iowa 427, 23 N.W. 907; Broburg v. Des Moines, 63 Iowa 523, 50 Am. Rep. 756, 19 N.W. 340; Williams v. Carterville, 97 Ill.App. 160; Lohr v. Philipsburg, 165 Pa. 109, 30 A. 822; Yeager v. Berwick, 218 Pa. 266, 67 A. 347; Alleghany v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649; Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309; Rosevere v. Osceolo Mills, 169 Pa. 555, 32 A. 548; Reid v. Mayor etc. of New York, 139 N.Y. 537, 34 N.E. 1102.)

The city is not liable unless the city's negligence was proximate cause of injury. (Elam v. Mt. Sterling, 20 L. R. A., N. S., 734, note; District of Columbia v. Dempsey, 13 App. D. C. 533.)

If the injury is caused by the negligence of another, there is no liability. (1 Thompson on Neg., 2d ed., sec. 712; Morgan v. Bell Tel. Co. (Rap. Jud. Quebec), 11 C. S. 103; Lamb v. Licey, 16 Idaho 664, 102 P. 378.)

The injury must be the proximate consequence of the act complained of; there must be no intermediate efficient cause. (Georgetown B. & L. Co. v. Eagles, 9 Colo. 544, 13 P. 696; 1 Thompson on Neg., 2d ed., 44, 45, 47.)

In argument to jury counsel should keep within the limits of the evidence, and not be permitted to testify, without having been sworn as a witness, or to interject into the case evidence that was never elicited at the trial. (Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Grant v. Verney, 21 Colo. 329, 40 P. 771; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Louisville & N. R. Co. v. Orr, 91 Ala. 548, 8 So. 360; Johnson v. Slappey, 85 Ga. 576, 11 S.E. 862.)

Hawley, Puckett & Hawley, for Respondent.

Cities under the general law and incorporated under the general laws of Idaho, which give far less privileges to those cities than is given to Boise City by its charter, are responsible for negligence in caring for their sidewalks. (Carson v. City of Genesee, 9 Idaho 244, 108 Am. St. 127, and note, 74 P. 862; Eaton v. City of Weiser, 12 Idaho 544, 118 Am. St. 225, 86 P. 541; Village of Sandpoint v. Doyle, 11 Idaho 642. 83 P. 598, 4 L. R. A., N. S., 810; Moreton v. Village of St. Anthony, 9 Idaho 532, 75 P. 262; Miller v. Village of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107.)

Cities have been held responsible for negligence of third parties in permitting wires to remain in an obstruction upon the streets. (Nichols v. Minneapolis, 33 Minn. 430, 53 Am. Rep. 56, 23 N.W. 868; Hays v. Hyde Park, 153 Mass. 514, 27 N.E. 522, 12 L. R. A. 249.)

City is liable for obstruction upon all parts of sidewalk. (Fockler v. Kansas City, 94 Mo.App. 464, 68 S.W. 363; McDonald v. St. Paul, 82 Minn. 308, 83 Am. St. 428, 84 N.W. 1022; Larson v. Sedro-Woolley, 49 Wash. 134, 94 P. 938.)

Actual knowledge or express notice of an obstruction in a street or upon a sidewalk need not be brought home to a municipal corporation in order to hold it liable for an injury resulting therefrom. Constructive or implied is sufficient. (Note to Elam v. Mt. Sterling, 20 L. R. A., N. S., 512, 705; Miller v. Mullan, 17 Idaho 28, 104 P. 661, 19 Ann. Cas. 1107; Elliott on Roads and Streets, p. 460; Sutter v. Kansas City, 138 Mo.App. 105, 119 S.W. 1084; Jones v. Ogden City, 32 Utah 221, 89 P. 1006; Austin v. Bellingham, 45 Wash. 460, 88 P. 834; O'Loughlin v. Pawnee City, 68 Neb. 244, 129 N.W. 271; St. Paul v. Hyslop, 174 F. 391, 98 C. C. A. 609; Apker v. Hoquiam, 51 Wash. 567, 99 P. 746.)

Whether or not the city had constructive knowledge is a question for the jury. (Note to Elam v. Mt. Sterling, supra, p. 730.)

Remarks of counsel which the jury are instructed to disregard are no grounds for reversal. (18 Dec. Digest, "Trial," par. 133 (6), and cases there cited; 46 Am. Dig. (Cent. ed.), "Trial," par. 316, and cases cited; Chicago etc. Ry. Co. v. Zapp, 209 Ill. 339, 70 N.E. 623; St. Louis I. M. Ry. Co. v. Boback, 71 Ark. 427, 75 S.W. 473; Miller v. Pryse, 20 Ky. L. 1544, 49 S.W. 777; Glasier v. Ypsilanti, 127 Mich. 674, 87 N.W. 52; Chezum v. Parker, 19 Wash. 645, 54 P. 22.)

Where the court does all in its power to counteract the offensive argument, and the injured party does not ask for a discharge of the jury, the objectionable matter is deemed cured. (Note on page 232, 7 Am. & Eng. Ann. Cas.; Robinson v. Stevens, 93 Ga. 535, 21 S.E. 96; Whaley v. Vanatta, 77 Ark. 238, 91 S.W. 191, 7 Ann. Cas. 228; Pressey v. Rhode Island (R. I.), 67 A. 447; Southern Indiana Ry. Co. v. Fine, 163 Ind. 617, 72 N.E. 589.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was commenced to recover from Boise City certain damages for personal injuries sustained by the plaintiff on June 29, 1907. The cause of the injuries was the tripping and falling by the respondent over a telephone wire attached to a pole which lay close to the sidewalk. The pole was about twenty feet long and six to ten inches in diameter. The wire, which was several feet in length, was securely fastened to the small end of the pole and extended on to the sidewalk, forming a loop, in which the plaintiff caught her foot as she was walking along the sidewalk. The plaintiff was injured about 9 o'clock in the evening. She was walking in the ordinary manner along the sidewalk when the accident occurred, and did not see the wire until after she was thrown to the sidewalk. The sidewalk in question had for a long time been the main traveled thoroughfare for pedestrians living south of the O. S. L. railway track. Other streets in that vicinity had no crossing over the railroad track, and as this street had a crossing, it was generally used by the people in that vicinity. The evidence shows that the pole and wire had been in the same position for several months before the accident occurred. As a result of the accident, plaintiff suffered intensely for a number of months. She was seven weeks in bed and it was nearly two years before she could walk without crutches. The evidence shows she suffered a great deal of pain and at the time of the trial was unable to take a step with her left foot. Prior to the injury she was a healthy woman. At the time of the accident she was about fifty-six years of age, with an expectancy of life of sixteen years. As a result of the injury her left leg is three-quarters of an inch shorter than the right.

The cause was tried to the court with a jury and the jury rendered a verdict in favor of the plaintiff for $ 3,000, and judgment was entered for that amount on said verdict. The appeal is from the judgment.

1. Several errors are assigned as to the rejection and admission of evidence. We have examined those assigned errors and...