Quest v. Town of Upton

• Decision Date: 25 January 1927
• Docket Number: 1300
• Parties: QUEST v. TOWN OF UPTON [*]
• Court: Wyoming Supreme Court

252 P. 506

36 Wyo. 1

QUEST v. TOWN OF UPTON ^[*]

No. 1300

Supreme Court of Wyoming

January 25, 1927

APPEAL from District Court, Weston County; HARRY P. ILSLEY, Judge.

Action by S. M. Quest against the Town of Upton. Judgment for plaintiff, and defendant appeals.

Reversed.

John P Rusk, and Metz, Sackett & Metz, for appellant.

There was no evidence of negligence; the plan of construction adopted by the town was reasonably safe for use of the public; there was no evidence of notice to the town of any defect prior to the accident; the rule that no notice is required of defects in original construction as distinguished from needed repair, as stated in 28 Cyc. 1386, is subject to limitation unless so dangerous as to show want of reasonable care and diligence; Mayor v. Wilson, 14 A. S. R 150, and note; Stoddard v. Winchester, 154 Mass 149, 26 A. S. R. 223; Rochefort v. Attleborough, 154 Mass. 140, 26 A. S. R. 221; Pearl v. Township, 91 N.W. 209. If the defect was not one inherent in the original plan of construction, the town is not chargeable with notice; Wyoming Co. v. Stanko, (Wyo.) 135 P. 1090; Montezuma v. Wilson, (Ga.) 14 A. S. R. 150; Dittrich v. Detroit, (Mich.) 57 N.W. 125; Jackson v. Boone, (Ga.) 20 S.E. 46; Owen v. New York, 126 N.Y.S. 38; City v. Benton, (Ky. ) 152 S.W. 241; Beck v. Germantown, 77 A. 448; Atchinson Co. v. Taylor, 57 P. 973; Cunningham v. Denver, (Colo.) 45 P. 356. The gutter was constructed according to engineer's plans and the sufficiency of the plan was not a question for the jury, unless so dangerous that reasonable minds must agree that it was unsafe; Ward v. City, (Utah) 151 P. 905; Healy v. Chicago, 131 Ill.App. 183; Gould v. Topeka, (Kan.) 4 P. 822; Brockman v. City, 136 S.W. 865; McIntyre v. City, 86 A. 300.

E. C. Raymond and R. G. Diefenderfer, for respondent.

There is nothing in the evidence showing that any engineering plan had been adopted; there was no evidence that the county surveyor, employed by the city, was a competent engineer; there was no evidence that the plan of construction had been prepared by a competent engineer; the county surveyor was employed; under the statute in force at that time, 1542 C. S., no requirement of qualification was fixed for county surveyors; respondent was injured by a loose plank in the gutter, and violently thrown; the jury believed the testimony of the respondent and his witnesses; appellant had actual knowledge of the defect; the facts are quite similar to those in the case of Village of Jefferson v. Chapman, 20 N.E. 33; the loose plank, shortly after being replaced by appellant, turned edgewise, tripped respondent and seriously injured him; see Evans v. Iowa City, 100 N.W. 1112; the case of Coal Co. v. Stanko, cited by appellant, is not applicable to the facts; notice is unnecessary to one who perpetrates an act causing injury; the construction of the walk in controversy was inherently dangerous and verdict was small considering the severity of the injury.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

S. M. Quest, the plaintiff, respondent here, sued the Town of Upton on account of an injury received in said town on April 29, 1922. At the close of the evidence, defendant made a motion to direct a verdict for the defendant, which was denied. The jury returned a verdict for $ 700. Plaintiff made a motion for judgment, notwithstanding the verdict, which was denied, and judgment was entered for plaintiff in the sum of $ 700--which was about the amount paid out by plaintiff for hospital and medical expenses.

In 1920, the Town of Upton, a municipal corporation, adopted a general improvement-plan upon the advice of Silas Lowell, a civil engineer and County Surveyor, and in accordance with this plan, and in fact under the direction and supervision of said engineer, laid out concrete sidewalks and cross-walks along and across Piney street in said town, and gutter-drains and gutter-coverings connecting the cross-walks with the sidewalks. The gutter-covering in question in this case was 4 1/2 feet in width and was constructed of heavy planks 19 inches long and 1 1/2 inches thick. The planks fitted into and were supported by a recess 1 1/2 inches wide and 1 1/2 inches deep in the concrete cross-walk, and a similar recess in the concrete sidewalks, so that the top of the planks was flush with the surface sidewalk and the surface cross-walk. Concrete shoulders at each side prevented lateral movement of the planks, but the planks were not fastened down but were held in place by their own weight. On the morning of April 29, 1922, the plaintiff crossed this gutter-covering and it was at that time level, flush with the concrete walks, and no defect was discovered therein. About fifteen or twenty minutes later, he, with some companion, carried a hog across this guttercovering, and one of the planks tipped up, by reason of which plaintiff fell and was severely injured. Just how the tipping of the plank was caused is unknown. About an hour previous to the accident, the marshal of the town had examined the gutter-covering, had taken up the planks, put them back to fit in tightly and level with the concrete walks, and no defect seemed to exist in the covering at that time. The planks were sound, apparently without fault, and in substantially the condition in which they were at the time of the original construction. No accident, such as befell the plaintiff, had happened in the town previously. There was some testimony to the effect that the plan adopted by the town, and the construction in accordance therewith, was unsafe. Other testimony, however, was to the contrary. Only one civil engineer, Mr. Gwillim--a man of considerable experience in his profession--testified in the case. His testimony was to the effect that the plan adopted, and the construction in accordance therewith, was reasonably safe.

It is apparent, therefore, that plaintiff could not recover herein on the theory that the town was negligent in repairing the gutter-covering in question, and could recover, if at all, only upon the theory that the plan of the construction, as well as the construction itself, was faulty. The defendant contends that it is not liable, under these circumstances.

Broadly, speaking, it is the duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for the ordinary use by the public, and it might, perhaps, be logically argued that it matters not from what source the defect arises; that a defect in plan is just as dangerous as a defect arising from any other source. On the other hand, a municipality cannot be held to be an insurer against accidents. It would seem to be harsh to hold it responsible where it has adopted and carried out a reasonable plan of improvement and where it has no notice of a latent defect therein. It was well said in the case of Shippey v. Au Sable, 65 Mich. 494, 32 N.W. 741 as follows:

"All municipal ways must be put under the supervision of the public authorities. It is for them to decide what works shall be undertaken and how the general safety and convenience requires them to be built. There must be some final arbiter as to the proper way of doing this. In many cases plans more or less final must be considered, and taxes or assessments levied to complete them. If it can be referred to a jury to determine on the propriety of such action, there will be as many views as there are juries, and it can never be definitely known when the municipality is safe. It is beyond human ingenuity to devise a plan which is not capable of danger to heedless persons or to young children, who cannot be expected to appreciate the danger. Reasonable safety is what the law requires and no more."

While the authorities are not altogether uniform, it may be said that many courts at least have developed a doctrine to the effect that there is a limitation in liability of a municipality for defects in its streets and sidewalks, if such defects exist in the improvement-plan adopted and carried out by the municipality. Courts differ as to the extent of this limitation. One of the leading cases upon the subject is City of Lansing v. Toolan, 37 Mich. 152, in which the court, through Chief Justice Cooley, said as follows:

"In planning a public work, a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection, for, as shown in Beckman's case (34 Mich. 125), that would be to take the administration of municipal affairs out of the hands to which it has been intrusted by law. What the public have the right to require of them is that in the construction of their works, after the plans are fixed upon and in their management afterwards, due care shall be observed, but negligence is not to be predicated of the plan itself."

The broad principle of non-liability, announced in this case seems to have been followed in a number of other cases. Urquhart v. Ogdensburg, 91 N.Y. 67, 43 Am. Rep. 91, Augusta v. Little, 115 Ga. 124, 41 S.E. 238; Gallagher v. Tipton, 133 Mo.App. 557, 113 S.W. 674; Hays v. Columbia, 159 Mo.App. 431, 141 S.W. 3; see McQuillan, Municipal Corporations, sec. 2633. The reasons urged in support of the principle are that the adoption of a plan for a public improvement is of a legislative or quasi judicial nature, involving the exercise of judgment, and that the corporate authorities in so doing act as public officers, rather than as agents of the city. Some authorities, however, have criticised this statement of the rule as being too broad, and hold that if such plan, and the construction in accordance therewith, is manifestly...