Strait v. City of Eureka

• Decision Date: 07 October 1903
• Citation: 96 N.W. 695,17 S.D. 326
• Parties: STRAIT v. CITY OF EUREKA.
• Court: South Dakota Supreme Court

96 N.W. 695

17 S.D. 326

STRAIT v. CITY OF EUREKA.

Supreme Court of South Dakota

October 7, 1903

Appeal from Circuit Court, McPherson County; Loring E. Gaffy, Judge.

Action by Dyer B. Strait against the city of Eureka. From a judgment for plaintiff, defendant appeals. Reversed.

G. N Williamson, for appellant. L. T. Boucher, for respondent.

FULLER J.

By an exception to the action of the trial court in overruling the defendant's objection to the introduction of any testimony on the part of plaintiff, we are first called to determine whether facts sufficient to constitute a cause of action are stated in the following complaint: "That the defendant, city of Eureka, is a municipal corporation organized under the law of this state approved March 6, 1890 the act being chapter 37 of the Session Laws of said year. That on the 10th day of October, 1901, and for more than a year prior thereto, the sidewalk of said city in front of the Merchants' Hotel on Market street in said city was and had been grossly defective in construction, rotten, and badly out of repair and dangerous. That said defects were well known to said city and to the mayor, marshal, policemen, and other officers of the defendant for more than a year prior to said date. That on October 10, 1901, the plaintiff, while passing along said sidewalk, without any fault or negligence on his part, stepped upon a short board or patch therein which, being rotten, and negligently secured to an old and rotten stringer, turned over, and the plaintiff, without any fault of his, fell through the hole thus made, a distance of some three feet, to the ground below, and thereby greatly injured his foot, and otherwise injured his body, whereby he was caused great pain and suffering for more than a month thereafter, and from which he has not yet wholly recovered. The plaintiff, besides the pain which he suffered by reason of said accident, was thereby rendered unfit for work or business for more than thirty days, to his damage in the sum of three hundred dollars. Wherefore the plaintiff prays judgment in his favor and against the defendant in the sum of three hundred dollars, and for his costs and disbursements herein." One who pleads to the merits and goes to trial without demurring greatly impairs his right to question the sufficiency of facts stated in a complaint by objecting to the introduction of any evidence. It is only when a pleading is incapable of being made good by amendment that the court should entertain the objection here relied upon. Stutsman County v. Mansfield, 5 Dak. 78, 37 N.W. 304; Johnson v. Burnside, 3 S. D. 230, 52 N.W. 1057; Anderson v Alseth, 6 S. D. 566, 62 N.W. 435. To sustain a complaint first objected to at the trial on the ground that facts sufficient to constitute a cause of action are not stated, this court will indulge every reasonable presumption, and judicially notice that the statute makes it the duty of incorporated cities and towns to keep their sidewalks in good repair. In the absence of a demurrer, or motion to make more definite and certain, the objection was properly overruled. First upon all the testimony offered in support of the complaint, and again when both sides had rested, counsel for the city moved for the direction of a verdict as follows: "First. That there is no evidence to show that the city or any of its officers had any notice or knowledge of any...