Rudd v. Village of Bovey

• Decision Date: 11 April 1958
• Docket Number: No. 37222--3,37222--3
• Parties: Rose RUDD and Rose Rudd, as Special Administratrix of Estate of William Rudd, Respondents, v. VILLAGE OF BOVEY, Appellant.
• Court: Minnesota Supreme Court

Page 689

89 N.W.2d 689

252 Minn. 151

Rose RUDD and Rose Rudd, as Special Administratrix of Estate

of William Rudd, Respondents, v. VILLAGE OF BOVEY, Appellant.

No. 37222--3.

Supreme Court of Minnesota.

April 11, 1958.

Syllabus by the Court

1. A corporate municipality is required to use ordinary care to keep its streets and sidewalks safe for persons using the same. This does not impose upon it obligation of affording protection against extraordinary occurrences.

2. Evidence of failure of municipality to repair defect in sidewalk in business district, consisting of triangular depression 1 1/4 inches to 1 1/2 inches in depth, within a reasonable time after becoming aware of it, when it could have been conveniently and economically repaired, Held sufficient to support finding of its negligence in pedestrian's action for damages sustained as a result of falling thereon.

3. Where plaintiff in walking down public sidewalk in business section of municipality observed depressions therein and determined that it would be reasonably safe to step over it rather than around it, Held that, since such defect was not obviously so dangerous that an attempt to step over it must be regarded as inherently dangerous or foolhardy, it cannot be said that such action constituted contributory negligence or assumption of risk as a matter of law.

4. Verdict of $7,200 for woman of age of 55 years with a life expectancy of 17.4 years who had been working approximately 15 hours a week doing outside housework, and who had received approximately $60 per month in payment therefor, and whose injuries included a fractured kneecap which required 20 days' hospitalization and thereafter a cast over such knee for approximately six weeks and which totally disabled her for 4 1/2 months and which thereafter left her with a 25-percent disability to her left leg and resulted in a permanent limp therein so that she will be unable to perform any outside services in the future, Held not excessive.

5. Verdict of $5,867 in favor of husband, who had paid or incurred medical expenses in the sum of $1,636.15; who was suffering from a hypertensive heart depression, cardiac asthma, and a decompensated heart described as dropsy; and who died shortly after trial, Held excessive and to require new trial unless written consent be filed reducing it to $3,000.

6. Trial court's instruction on issue of assumption of risk held to cover principles governing issue and not to be erroneous to extent of requiring new trial where specific instructions requested by defendant did not correctly state rules applicable thereon.

Nahman Schochet, Coleraine, and Lewis, Hammer, Heaney, Weyl & Halverson, Duluth, for appellant.

Spellacy, Spellacy & Lano, John A. Spellacy, Marble, for respondents.

THOMAS GALLAGHER, Justice.

Action by Rose Rudd against the village of Bovey for injuries sustained when she fell on a public sidewalk in the village on October 27, 1955, at 7 a.m. William Rudd, her husband, likewise brought action for special damages sustained as a result of her injuries.

The jury returned a verdict in favor of Rose Rudd for $7,200 and for William Rudd for $5,867. Subsequent to the trial, William Rudd died and his wife, as special administratrix for his estate, was substituted as plaintiff in his action. These appeals are from an order in each case denying defendant's motion for judgment notwithstanding the verdict or for new trial.

On appeal defendant contends (1) that defendant was not negligent in failing to repair a hole or depression in the sidewalk upon which Mrs. Rudd fell; (2) that Mrs. Rudd was guilty of contributory negligence and assumed the risk of injury as a matter of law in attempting to step over rather than around the depression; (3) that the verdicts are excessive; and (4) the court erred in refusing to give certain instructions requested by defendant.

At the time of the accident plaintiff, on her way to work, was walking easterly on the public sidewalk on the south side of Second Street approaching Third Avenue in the business district of Bovey. The sidewalk upon which she was traveling rises uphill easterly and has numerous cracks, holes, depressions, rises, and other defects within the block in which the accident occurred. The day was bright and clear. There was no snow or ice on the walk and nothing to distract the attention of pedestrians. Mrs. Rudd's vision was good and during the year prior to her fall she had traversed this walk some 200 times. As she approached the depression, she observed it and attempted to step over it. While doing so, the heel of her shoe struck the edge thereof and she fell, fracturing her left kneecap.

Defendant submitted evidence that the depression upon which the fall occurred was triangular in shape with a depth of 1 1/4 inches on the north side and 1 1/2 inches on the south side. Photographs thereof were received in evidence and considered by the jury. It had existed for at least 2 or 3 years prior to the accident and could have been easily repaired with tarvia at a reasonable cost.

Plaintiff testified that she had not paid any particular attention to the defect that caused her fall but had observed it along with other defects and depressions in the sidewalk in this block as she walked along. She admitted that she could have stepped to the right or left of this depression and avoided it but had decided to step over it instead and that in doing so she had slipped and the heel of her shoe had caught in the depression and tripped her.

1. It is well established that a corporate municipality must use ordinary care to keep its streets and sidewalks safe for persons using the same. 13 Dunnell, Dig. (3 ed.) § 6818. Of course, this does not impose upon it the obligation of furnishing protection against extraordinary or improbable occurrences. Tracey v. City of Minneapolis, 185 Minn. 380, 241 N.W. 390; Hanson v. City of Montevideo, 189 Minn. 268, 249 N.W. 46.

2. It is defendant's contention that the sidewalk defect here was not such as to require the village to guard against the possibility of pedestrians falling thereon. The decisions of this court appear to hold to the contrary. In Bieber v. City of St. Paul, 87 Minn. 35, 91 N.W. 20, it was held that, where a hexagonal piece of sidewalk at the entrance to a store in the busy section of town was 1 1/4 inches lower than the level of the surrounding walk, the question of defendant's negligence was for the jury. In arriving at this conclusion, one of the factors given consideration was the heavy foot traffic over the walk at the place where the defect existed. In Estabrook v. City of Duluth, 142 Minn. 318, 320, 172 N.W. 123, 124, where the area surrounding a knot in a wood paving block had worn down from a depth of 1/2 inch to 1 1/2 inches, this court quoted with approval the applicable principles set forth in Leystrom v. City of Ada, 110 Minn. 340, 343, 125 N.W. 507, 508, as follows '* * * It is impossible for this court to prescribe exact limitations from which, in all cases, it may be determined what character of defect in a public street constitutes negligence on the part of the municipality. Given a defect and consequent injury, the question of negligence must generally be submitted to the good sense of the jury, * * *.'

See, also, Genereau v. City of Duluth, 131 Minn. 92, 154 N.W. 664; Klaysmat v. Village of Hibbing, 172 Minn. 524, 215 N.W. 851; Brittain v. City of Minneapolis, 250 Minn. 376, 84 N.W.2d 646.

These decisions give support to our conclusion that here the issue of defendant's negligence was one for the jury. The evidence established that the defect was in the busy section of the village and was known to its officials for some time prior to the accident. It could have been readily and economically repaired. Without question, it...