Shartle v. City of Minneapolis

• Decision Date: 01 January 1872
• Citation: 17 Minn. 284
• Parties: ISAAC SHARTLE v. CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

Page 284

17 Minn. 284

ISAAC SHARTLE

v. CITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Hennepin county, denying a new trial.

J. M. Shaw and A. H. Young, for appellant.

Lochren & McNair, for respondent.

McMILLAN, J.

This is an action to recover damages for injuries to the plaintiff's wife by reason of a defective bridge. At the commencement of the trial the defendant objected to any evidence being given under the complaint in the action, and moved for judgment of dismissal upon the pleadings, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The objection was overruled, and the motion denied, to which the defendant's counsel excepted.

In support of his exception the defendant's counsel urges several objections to the complaint: (1) It does not allege that the bridge was a public highway, or that it was in a public highway. (2) There are no facts pleaded showing that there was any duty resting upon the defendant to keep the bridge in repair. The mere allegation that it was the duty of the defendant to do so is bad. (3) The complaint does not show that defendant built said bridge, or has maintained it or owned it. (4) The complaint does not allege that the defendant had the necessary funds or means with which to repair the bridge.

In disposing of this question we will consider together the first and third objections specified. The only allegations in the complaint, so far as we discover, bearing upon the character of the bridge in question as a public highway, are as follows: "That on or about the twenty-sixth day of June, A. D. 1868, there existed a certain bridge in said city, and over what is called Bassett's creek; * * * that it was the duty of said city to make and keep in good repair said bridge as well as all other bridges within its limits; that said bridge was situate upon a street or highway over which passed a large amount of travel."

This is an express averment that the bridge is within the corporate limits of the city, and situate upon a street or highway over which passed a large amount of travel.

We think it is to be inferred from the use of the term street or highway in the connection in which it stands, that the same was a public street or highway. Farrant v. First Div. St. P. & P. R. Co. 13 Minn. 311, (Gil. 286.)

But conceding that the complaint is not as full and accurate as it might be, a further answer to the objections is that the defendant, in its answer which is to be considered in connection with the complaint, admits "that there was at the time alleged in said complaint, within the corporate limits of the city of Minneapolis, a certain bridge, * * * which said bridge was known as the First-street bridge, and which upon information and belief defendant alleges was the same bridge mentioned in said complaint.

* * * * * * *

"Defendant further alleges that long prior to said twenty-sixth day of June, 1868, to-wit, more than one month prior thereto, the common council of the said city of Minneapolis had caused the said bridge to be securely fenced up and stopped at each end, and had taken and used all reasonable and necessary means and precautions to prevent the same being used by the public, which said fences and obstructions to the use of the same remained and were at the approaches to said bridge up to and on said day, and at the time of the pretended accident, and that said council had long prior thereto instituted, and were at said time prosecuting, with all reasonable dispatch and diligence, and as fast as said city was able, measures for the rebuilding of said bridge."

The averment that the city council used the means necessary to prevent the public from using the bridge, in connection with the averment that the council had taken measures for rebuilding the bridge, is an admission of the assumption by the city of the care and control of the bridge in question. Mayor v. Sheffield, 4 Wall. 189.

If, therefore, the complaint were defective in the points embraced in the objections under consideration, the defect is cured by the answer. 1 Chit. Pl. 671; Gould, Pl. c. 3, § 192.

The second objection specified is, "that there are no facts pleaded showing that there was any duty resting upon the defendant to keep the bridge in repair."

The complaint avers the incorporation of the defendant, and pleads the act of incorporation by stating its title, which under our statute is sufficient; we are, then, charged with judicial notice of all the provisions of the defendant's charter, without further averment. Section 1, of chapter 6, of the act of incorporation, is as follows: "The common council of said city shall have the care, supervision, and control of all the highways, bridges, streets, alleys, public squares, and grounds within the limits of the city, and shall have power to build and keep in repair bridges, lay out, open, alter, and vacate public squares, highways, streets, lanes, and alleys, and widen or straighten the same, and take grounds for the site of public buildings, subject to the assessment of damages as hereinafter provided." Sp. Laws 1867, p. 70.

Section 2, of chapter 5, of the charter, is as follows: "The common council shall have power to levy a special tax upon all the taxable property in the city or of the different wards of the same for the purpose of constructing, maintaining bridges and culverts, and opening, constructing, maintaining, and repairing roads, highways, streets, and alleys; for the construction of reservoirs, cisterns, sewers, drains, and street gutters, and grading of streets, and for other purposes conducive to good order and cleanliness and to protection against crime, disease, and fire. Provided, that such taxes shall in no year exceed six mills upon a dollar of the assessed valuation; and, provided further, that for the improvements in this section mentioned the common council shall have power to assess the tax to pay the same upon the ward or wards benefited by such improvement, in such manner and to such extent as the common council may think just and equitable." Sp. Laws 1867, p. 68.

We think it needs no argument to show that by section 1, c. 6, the city of Minneapolis, defendant, is invested with the exclusive care, supervision, and control of all bridges, public and free to all passengers, situate within the corporate limits. We have already determined that it sufficiently appears that the bridge in question was a public bridge in said city. So far, therefore, as section 1 of chapter 6 is concerned, it was within the exclusive care and control of the city.

It is well settled that a municipal corporation, having the exclusive control of the streets and bridges within its limits, at least if the means for performing the duty are provided or placed at his disposal, is obliged to keep them in a safe condition; and if it unreasonably neglects this duty, and injury results to any person by this neglect, the corporation is liable for the damage sustained. Russell v. Men of Devon, 2 Term R. 667; Mayor, etc., of N. Y. v. Furze, 3 Hill, 612; Conrad v. Trustees, etc., of Ithaca, 16 N. Y. 159, and note; Op. of Selden, J. in West v. Brockport; Shearman & R. Neg. § 126; Wendell v. Troy, 39 Barb. 335; Same v. Same, affirmed, 43 N. Y. 261; Erie City v. Schwingle, 22 Pa. 385, and authorities cited; Weightman v. Corp. of Washington, 1 Black, 39; Chicago City v. Robbins, 2 Black, 418; Wilson v. Mayor, etc., of N. Y., 1 Denio, 595, (601;) Hutson v. Same, 9 N. Y. 163.

Unless, therefore, the fourth objection specified, to-wit, that "the complaint does not allege that the defendant had the necessary funds or means with which to repair the bridge," is well taken, the complaint is sufficient.

To this objection there are, in this instance, several answers: (1) If the obligation of the city in regard to the bridge was a conditional one, the condition was not a condition precedent, unless made so by statute, but was a condition subsequent, and was, therefore, matter of defense to be pleaded by the defendant. Shearman & R. Neg. § 133; Erie City v. Schwingle, 22 Pa. 384; Wendell v. Troy, 39 Barb. 329, 338. (2) Section 1, of chapter 6, which imposes the obligation, contains no exception or limitation. The duty enjoined by it is general and unconditional. Section 2, of chapter 5, which makes provision for taxation for constructing and maintaining bridges, etc., is entirely distinct and separate from section 1. So far, therefore, as the statute itself is concerned, section 2, of chapter 5, containing the power to tax, is not made a proviso or exception to section 1, of chapter 6, and need not be noticed by the plaintiff in the first instance. Gould, Pl. c. 4, § 22. (3) But conceding, for the argument, that it was necessary for the plaintiff to plead, in the first instance, that the means to perform the...