Rief v. The Mountain States Telephone and Telegraph Company

• Court: Idaho Supreme Court
• Writing for the Court: Holden, J. HOLDEN, J.
• Citation: Rief v. The Mountain States Telephone and Telegraph Company, 120 P.2d 823, 63 Idaho 418 (Idaho 1941)
• Decision Date: 22 December 1941
• Docket Number: 6918
• Parties: HENRY RIEF, Appellant, v. THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, and DEWEY-DAVIS ESTATE, INC., a corporation, Respondents

120 P.2d 823

63 Idaho 418

HENRY RIEF, Appellant, v. THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, and DEWEY-DAVIS ESTATE, INC., a corporation, Respondents

No. 6918

Supreme Court of Idaho

December 22, 1941

Rehearing denied January 19, 1942

MUNICIPAL CORPORATIONS-OBSTRUCTION OF SIDEWALK-SIDEWALK DOORS-NUISANCE PER SE-INJURY TO PEDESTRIAN.

1. It is common knowledge that at the time of and ever since the enactment of statute defining nuisance in 1915, doors which open outwardly over sidewalks were and still are in general use in Idaho. (I. C. A. sec. 51-101.)

2. It is not every obstruction in a street or highway that constitutes a "nuisance per se" but the right of the public to the free and unobstructed use of street or highway is subject to reasonable and necessary limitations and to such incidental, temporary, or partial obstructions as manifest necessity may require. (I. C. A. sec. 51-101.)

3. Where pedestrian walking on sidewalk in business district of city was struck by a screen door which opened outward immediately in front of him, the pedestrian could not recover for his injury from owner and tenant of building, since the maintenance and use of the screen door did not constitute a substantial "obstruction" and did not constitute a "nuisance per se." (I. C. A. sec. 51-101.)

4. Anything which does not amount to a substantial obstruction of a street or an inherent interference with the free or comfortable enjoyment of life or property within meaning of statute is not a public "nuisance per se." (I. C A. sec. 51-101.)

5. A municipality may prevent or remove anything which it believes to be an unreasonable encroachment upon or into a sidewalk. (I. C. A. sec. 49-1123.)

Rehearing denied January 19, 1942.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. A. O. Sutton, Judge.

Action for damages. Judgment of dismissal. Affirmed.

Judgment affirmed, with costs to respondents.

Frank F. Kibler and Creed W. Mullins, for Appellant.

The normal operation of the screen door involved in this case was such that the possibility of injury to a pedestrian was always present. The same was inherently dangerous and a menace to all persons using the public sidewalk at that point. It is, therefore, a public nuisance and violative of fundamental principles of personal and property rights. (Higginbotham v. Kearse, 161 S.E. 37 W. Va.) 77 A L. R. 1116; Holroyd v. Sheridan, 65 N.Y.S. 442; Boyle v. Neisner Brothers, 87 S.W.2d 227 (Mo.); Chambers v. Roanoke etc. Ass'n., 68 S.E. 980 (Va.); King v. Hartung, 96 S.E. 202, 203; Congreve v. Smith, 18 N.Y. 79, 82.)

Richards & Haga and Hawley & Hawley, for Respondents.

Where an obstruction is expressly authorized by statute, it is not a nuisance, and since Section 38-1405, I. C. A., requires that doors must open outward in churches, theaters, et cetera, there is express statutory authorization for the construction and maintenance of the door in question here. (Section 51-108, I. C. A.; Mac. Cammelly v. Pioneer Irrigation District, 17 Idaho 415; 105 P. 1076; Boise City v. Boise City Canal Company, 19 Idaho 717; 115 P. 505; City of Lewiston v. Isaman, 19 Idaho 653; 115 P. 494; City of Twin Falls v. Harlan, 27 Idaho 766; 151 P. 1191.)

Holden, J. Givens and Ailshie, JJ., concur. Morgan, J., dissents. Budge, C.J., sat at the hearing did not participate in the decision.

OPINION

Holden, J.

At the time of the occurrence of the accident hereinafter mentioned, the Dewey-Davis Estate, Inc., owned and had leased to respondent Mountain States Telephone and Telegraph Company a part of a certain building fronting and abutting on First Avenue South in the city of Nampa, Idaho. The leased premises were used and occupied by the telephone company as its main office and principal place of business in that city. A screen door, which opened out on the street, giving ingress and egress, had been installed at the entrance to the office of the telephone company, and was in use by patrons of the company.

At about half-past two o'clock on the afternoon of September 4, 1939, as Henry Rief, who was walking on the right-hand or southerly side of First Avenue South, reached the point where this screen door was located, it opened outward (whether by someone coming out, or how, the record does not disclose) immediately in front of him. He struck his head on the door and fell to the sidewalk, sustaining certain bodily injuries.

September 9, 1940, Mr. Rief commenced an action in the District Court for Canyon County against the Dewey-Davis Estate and the Mountain States Telephone and Telegraph Company for the recovery of resulting damages. The estate and the telephone company separately demurred to plaintiff's complaint on the ground it did not state facts sufficient to constitute a cause of action. January 17, 1941, the trial court sustained these demurrers, granting appellant twenty days within which to file an amended complaint. February 8, 1941, no amended complaint having been filed, the court entered judgment of dismissal from which this appeal was prosecuted.

Appellant contends

"It should be quite apparent upon reading the complaint against the defendants here, that this action is not predicated upon any act of negligence whatsoever, but is rather based and concisely stated to be on a public nuisance theory. Therefore, it is not incumbent upon the plaintiff to plead or allege negligence, or that the matter complained of was negligently done." that

"This door as maintained was a nuisance per se, by reason of its being placed in the position where it opened outward three feet over the public sidewalk makes it so," and that

"This door could be, and probably was, perfectly safe for ordinary use, opening outward over the public sidewalk, until such time as that use resulted in injury such as in this case. We do not believe that it makes any difference in this type of case just how good the installation was, or that it is material at all whether or not there were any defects in the door. The ultimate fact is that a door, regardless of its condition or manner of installation, opened outward over the sidewalk and injured a pedestrian, who was in a place where he had every lawful right to be at that time. This is a public nuisance, and the fact that due care was exercised and due precautions were taken against the annoyance or injury complained of is no excuse."

Thus a single decisive question is presented: Was the maintenance and use of the screen door a nuisance per se? There is a sharp, pronounced division of judicial opinion on this question. The authorities to which appellant directs our attention are: Higginbotham v. Kearse, 111 W.Va. 264, 161 S.E. 37, 77 A. L. R. 1110; Boyle v. Neisner Bros., 230 Mo.App. 90, 87 S.W.2d 227; Holroyd v. Sheridan, 53 A.D. 14, 65 N.Y.S. 442; Chambers v. Roanoke Industrial and Agricultural Ass'n., 111 Va. 254, 68 S.E. 980; King v. Hartung, 123 Va. 185, 96 S.E. 202; Congreve v. Smith, 18 N.Y. 79; O'Hanlin v. Carter Oil Company, 54 W.Va. 510, 46 S.E. 565, 66 L. R. A. 893; Winkler v. Carolina & N.W. Ry. Co., 126 N.C. 370, 35 S.E. 621, 78 Am. St. Rep. 663; Mosher v. Vincent, 39 Iowa 607; Hyde v. County, 68 Mass. 267, 2 Gray 267; Adams v. Beach, 6 Hill 271.

Higginbotham v. Kearse and Boyle v. Neisner, supra, are particularly relied upon by appellant. In the Higginbotham case the West Virginia Supreme Court of Appeals said:

"We recognize and adhere to the principle already adverted to that the owner of property abutting a highway may make use thereof which is not consistent with the unimpeded use of the highway at all times by travelers whether on foot or in vehicle. Such use, however, must be reasonable, and above everything else, it must not involve a situation which savors of the characteristics of a trap, that is, there must not be employed any contrivance or instrumentality which may, in either a latent or an operating state, take by surprise and unawares a person using the highway and injure him. An instrumentality which in its normal operation may inflict serious injury on a pedestrian howsoever carefully he may be moving along the street is inherently dangerous and constitutes a menace to all persons using such public way. It is a public nuisance. The employment of such instrumentality is violative of fundamental principles of personal and property rights. It ignores the former and exaggerates the latter. What possible conception of property rights can justify a property owner in maintaining at the entrance of his building binding on a public street a door so hung on hinges that it must swing out when opened, and which may at any instant, at the hands of an innocent user, be pushed into the face of a passing pedestrian? It may mar for life the countenance of a beautiful girl; it may cripple a little child, or it may hurl to the hard surface of the pavement an aged man and inflict grievous injury, as in this case. The law will not permit an owner of such instrumentality to stand free of responsibility, if the latter was free of negligence. Many decisions and texts sustain the principles underlying these statements."

And in Boyle v. Neisner Bros. supra, the St. Louis Court of Appeals said this:

"We are thoroughly impressed with the soundness of the doctrine that sidewalks are primarily designed for use by the public and that no private person, for purely business reasons, has the legal right to so use them as to obstruct, interfere with, or impair the right of the public to the free use of them. If we admit that the owner or occupier of property has the legal right to maintain a door which opens so as to take up one third of the width of the sidewalk, then it follows that he would have the legal right to...