Sumner v. City of Northfield

• Decision Date: 27 October 1905
• Docket Number: 14,540 - (58)
• Citation: 104 N.W. 686,96 Minn. 107
• Parties: STELLA SUMNER v. CITY OF NORTHFIELD
• Court: Minnesota Supreme Court

104 N.W. 686

96 Minn. 107

STELLA SUMNER v. CITY OF NORTHFIELD

Nos. 14,540 - (58)

Supreme Court of Minnesota

October 27, 1905

Action in the district court for Rice county to recover $3,000 for personal injuries resulting from a fall caused by a defective street crossing. The case was tried before Buckham, J., and a jury, which rendered a verdict in favor of plaintiff for $3,250. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Care of Sidewalk.

Municipalities are bound to exercise only reasonable care in the inspection and maintenance of sidewalks and crossings; but such care involves due regard, not only to the size and depth of a depression therein complained of, but also to its form, as affecting the peril to which it exposes persons lawfully using the highway.

Question for Jury.

It is for the jury to determine whether or not it was negligent for a city to maintain a crossing at a principal street with full notice of a small V-shaped hole broken through the planks, in which plaintiff's foot was caught, to her damage.

Joseph Donaldson and Robert Mee, for appellant.

A. B Childress and F. M. Wilson, for respondent.

OPINION

JAGGARD, J.

Plaintiff and respondent brought an action against the defendant and appellant for personal injuries caused by an alleged defective sidewalk. The jury returned a verdict of $3,250. From an order denying motion for new trial the defendant appeals. The motion for new trial was based on the grounds that the verdict was not justified by the evidence and was contrary to law and that there was newly discovered evidence.

Inasmuch as there was no claim of error in law occurring at the trial, or of any irregularity in proceedings (G.S. 1894, § 5398), the assignment of error based upon the admission in evidence by the trial court of certain photographs, notwithstanding defendant's objection, presents no question for decision by this court. We are of opinion, however, that, apart from this question of practice, the photographs were properly received in evidence. The affidavits setting forth alleged newly discovered evidence did not entitle the defendant to a new trial, because they contained no matter not essentially cumulative or corroborative in character and failed to show the exercise of the necessary diligence. 4 Current Law, 819, 820. The record does not present any serious question as to notice to the city of the defective condition of the sidewalk, because of which the plaintiff was injured. A street commissioner of the defendant, charged with the duty of repairing the sidewalk, and who, subsequent to the accident, in fact repaired the defect here under consideration, testified:

I have seen the hole lots of times, and went over it. That is the sap rot. There was no hole there that would call my attention to fix it. It wasn't dangerous. * * * Q. So you passed over there? How long before that [the accident] had you passed over it? Had you passed over it a week or a month before? A. About a week or...