Smith v. City of Rexburg

• Decision Date: 04 June 1913
• Citation: 132 P. 1153,24 Idaho 176
• Parties: JACOB F. SMITH, Respondent, v. CITY OF REXBURG, Appellant
• Court: Idaho Supreme Court

132 P. 1153

24 Idaho 176

JACOB F. SMITH, Respondent, v. CITY OF REXBURG, Appellant

Supreme Court of Idaho

June 4, 1913

MUNICIPAL LAW-MAINTENANCE OF STREETS-NEGLIGENCE OF CITY-CONTRIBUTORY NEGLIGENCE-COVERING OF DRAIN DITCHES.

1. A city, town or village opening a street for public travel is not under the necessity of grading and preparing the full width of the street so as to render the same fit for travel but is vested with a certain discretion in respect to such matters.

2. Where a city lays out and maintains a street 67 feet wide between the sidewalks, and grades and prepares a driveway in the center of the street 30 feet wide, and maintains such driveway in good and safe condition, and covers over a drain ditch crossing such street for the length of 30 feet, being the entire portion of the ditch crossing the graded and traveled part of the street, held, that the city is not guilty of negligence for failing to cover such drain ditch throughout its full length or for a greater length than the width of the graded, prepared and traveled portion of the street.

3. Where a teamster was driving an oil wagon drawn by a span of draft horses along a street that was graded, prepared, and which had been traveled for a width of 30 feet, and the street was in no way blocked, and the passage was in no way hindered or obstructed, and such driver failed to observe the end of a bridge or culvert, or boards covering a drain ditch and allowed his wagon to run off the end of such culvert, and he received injuries thereby, held, that he is guilty of negligence and cannot recover.

4. Instructions in this case examined and compared and held to be conflicting, inconsistent and confusing.

5. Held, that under the facts of this case, there could be no room for the application of the "last clear chance" doctrine as heretofore recognized and announced by this court.

APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Defendant appealed. Reversed.

Judgment reversed, and cause remanded with direction. Costs awarded to appellant.

C. W Poole and Clark & Budge, for Appellant.

The duty of the municipality is fully discharged when it makes a sufficient width of its highways reasonably safe for travel, taking into consideration the location of the street and the extent to which the same is used. The authorities clearly bear out this statement of the law. (Herndon v. Salt Lake City, 34 Utah 65, 131 Am. St. 827, 95 P. 646; Tasker v. Inhabitants of Farmingdale, 85 Me. 523, 27 A. 464; Perkins v. Inhabitants of Fayette, 68 Me. 152, 28 Am. Rep. 84; Kossman v. City of St. Louis, 153 Mo. 293, 54 S.W. 513; Kelley v. City of Fond du Lac, 31 Wis. 179.)

A person using ordinary care would not be in imminent danger of running off the end of the culvert; in fact, he would be in no danger whatsoever of doing so. (Village of Mineral City v. Gilbow, 81 Ohio St. 263, 90 N.E. 800, 25 L. R. A., N. S., 627; Knowlton v. City of Augusta, 84 Me. 572, 24 A. 1039.)

Instruction No. 15 is clearly erroneous. By it the jury is instructed, in effect, that notwithstanding respondent might in some way have been guilty of contributory negligence, he can nevertheless recover if by ordinary care he could not have avoided the consequences of the defendant's negligence. (Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Portneuf Marsh Valley Irr. Co. v. Portneuf Irr. Co., 19 Idaho 483, 114 P. 19.)

If the instruction was intended to present to the jury the doctrine of the "last clear chance," it would nevertheless be erroneous, because it is alleged by the plaintiff in his complaint that the accident occurred "without any fault on his part," and "solely and entirely by reason of the defendant city failing to exercise due and ordinary diligence and precaution to prevent the same, and solely by reason of the negligence and carelessness of the defendant city," etc. (Hough v. St. Louis Car Co., 146 Mo.App. 58, 123 S.W. 83.)

If the proof shows in a case such as the one under consideration that the plaintiff was guilty of contributory negligence, he cannot recover. (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Wheeler v. Oregon R. & N. Co., 16 Idaho 375, 102 P. 347; Goure v. Storey, 17 Idaho 352, 105 Pac: 794; Rumpel v. Oregon Short Line Ry. Co., 4 Idaho 13, 35 P. 700, 22 L. R. A. 725.)

The mere fact that the place may happen to be dangerous does not change the rule as to the city's duty, though it may be conceded that more would be required to constitute ordinary care with respect to a dangerous place than one not dangerous. A city, however, is bound to the exercise of only ordinary care. (28 Cyc. 1358, 1360; City of Denver v. Moewes, 15 Colo. App. 28, 60 P. 986; Leslie v. City of Grand Rapids, 120 Mich. 28, 78 N.W. 885; Town of Norman v. Teel, 12 Okla. 69, 69 P. 791; City of Vicksburg v. Hennessy, 54 Miss. 391, 28 Am. Rep. 354.)

Soule & Soule, for Respondent.

The evidence on the question of negligence or lack of negligence in this case is conflicting, and the question of negligence or lack of negligence is for the jury. They have passed upon it, and have found that the plaintiff was in the exercise or ordinary care and that the defendant city was negligent. This court has repeatedly held that a verdict, under such circumstances, will not be reversed or set aside. (Calkins v. Blackwell Lumber Co., 23 Idaho 128, 129 P. 435; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9.)

The correctness of instruction No. 15 will be seen and made plain by a brief reference to some of the decided cases. (Wheeler v. Oregon R. R. & N. Co., supra; Rippetoe v. Feely, supra; Village of Orleans v. Perry, 24 Neb. 831, 40 N.W. 417.)

The jury were properly instructed that slight negligence would not prevent recovery, and want of ordinary care would do so. (Cremer v. Town of Portland, 36 Wis. 92; Hammond v. Town of Mukwa, 40 Wis. 35; Otis v. Town of Janesville, 47 Wis. 422, 2 N.W. 785.)

Unless such negligence amounts to want of ordinary care, it will not defeat recovery. (29 Cyc. 511, 512, and cases cited; Mayor etc. of City of Rome v. Dodd, 58 Ga. 238; Centerville v. Woods, 57 Ind. 192; Rowell v. Williams, 29 Iowa 210; St. Paul v. Kuby, 8 Minn. 154.)

Not only must the negligence of the party injured by another's negligence contribute to the injury to defeat a recovery therefor, but it must contribute as a proximate cause, not as a remote cause or mere condition. (2 Thomp. Neg. 1151; Shearman & Redfield, Neg., sec. 25; Wharton, Neg., sec. 323; Irwin v. Sprigg, 6 Gill (Md. ), 200, 46 Am. Dec. 667; Kline v. Central P. R. R. Co., 37 Cal. 400, 99 Am. Dec. 282.)

The duty of cities to keep their streets in repair "extends not only to the traveled way of streets and alleys, but to adjacent conditions." (City of Vincennes v. Spees (Ind. App.), 72 N.E. 531; Elliott, Roads and Streets, sec. 618; Woods v. Inhabitants of Groton, 111 Mass. 357; Bunch v. Town of Edenton, 90 N.C. 431; Boltz v. Town of Sullivan, 101 Wis. 608, 77 N.W. 870; City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted to recover damages for personal injury. Verdict was returned and judgment was entered against the city, and this appeal was thereupon prosecuted.

It is contended, first, that the evidence is not sufficient to support the verdict and judgment, and, second, that the court erred in giving certain instructions to the jury. The substantial facts of the case are as follows: The respondent was driving an oil wagon which was drawn by a span of draft horses; he drove northerly along Second East street, in the city of Rexburg, and intended to turn west at the junction of that street with Main street. Immediately after crossing the crosswalk which connects the sidewalks extending along the south side of Main street, the left front wheel ran off the end of a culvert and dropped some 13 inches, and threw respondent from his seat on the wagon and one or both of the wheels ran over him, from which he sustained severe injuries. He has charged the city with negligence in maintaining this culvert.

Second East street is 67 feet between the sidewalks, and 30 feet in the middle of the street was graded and maintained in first-class condition for travel. The city maintained a drain ditch along the south side of Main street for the full length of the street. This ditch is something like eight feet from the crosswalk or eight feet north of the crosswalk which connects the sidewalk running along the south side of Main street. This drain ditch was somewhere from 15 to 24 inches wide and about 13 inches deep. This is the ditch over which the city maintained the culvert. The city had caused substantial boards to be placed lengthwise over this drain ditch for the full width of the 30 feet, extending across the traveled part of Second East street. This covering was lowered into the ground so that the top thereof was covered with earth and the boards could not be seen by one driving along, except as he noticed them at the ends along the sides of the traveled highway. It appears that it had been the habit of persons driving teams east along Main street and turning south on Second East street to turn in on Second East street at the end of this culvert, and so the wagons had worn the ends of the boards and chipped places in them at the ends. White clover and grass and vegetation had grown up along the ditch and about the ends of the boards, so that one coming up Second East street from south to north would not readily notice the end of the boards or that there was a culvert at that place. Respondent was apparently not...