Thomas v. Pocatello Power & Irrigation Co.

Decision Date22 December 1900
Citation7 Idaho 435,63 P. 595
PartiesTHOMAS v. POCATELLO POWER AND IRRIGATION COMPANY
CourtIdaho Supreme Court

NEGLIGENCE IN MAINTAINING FOOTBRIDGE.-When an action is brought to recover damages for the negligent and careless construction and maintenance of a footbridge, and the evidence wholly fails to establish the allegations of the complaint in that regard, the judgment for plaintiff must be reversed.

EVIDENCE.-When there is no substantial conflict in the evidence, and the verdict of the jury is contrary to such evidence, a judgment based upon said verdict will be reversed upon appeal.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant.

As the evidence shows persons passing over the bridge could not be regarded as trespassers, certainly children playing there from day to day, to the knowledge of the defendant, could not be regarded as such trespassers as would prevent a recovery. (Price v. Atchinson Water Co., 58 Kan. 551, 50 P. 450, 62 Am. St. Rep. 625; Union Pacific Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619; Kinchlow v. Midland Elevator Co., 57 Kan. 374, 46 P. 703; Bennett v. Railroad Co., 102 U.S. 577; Holt v. Spokane etc. Ry. Co., 3 Idaho 703, 35 P. 39; Consolidated City etc. P. Ry. Co. v. Carlson, 48 P. 635; Branson v. Lobrot, 81 Ky. 638, 50 Am. Rep. 193; Pekin v. McMahon, 154 Ill. 141, 45 Am. St. Rep. 114, 39 N.E. 484; Birge v. Gardner, 19 Conn. 507, 50 Am. Dec. 261; Earl v. Cronck, 131 N.Y. 613, 30 N.E. 864, affirming S. C., 61 Hun, 624, 16 N.Y.S. 770; Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Hydraulic Works Co. v. Orr, 83 Pa. 332; Keefe v. Railroad Co., 21 Minn. 207, 18 Am. Rep. 393; Spokane etc. Ry. Co. v. Holt, 4 Idaho 443, 40 P. 56; Sioux City R. R. Co. v. Stout, 17 Wall. 657; Brinkley Mfg. Co. v. Cooper, 60 Ark. 545, 46 Am. St. Rep. 216, 31 S.W. 154.) The rule is that the defendant is required to allege contributory negligence on the part of the plaintiff, and prove it by a preponderance of the evidence and the burden was not upon the plaintiff to disprove such contributory negligence. No such plea was interposed in this case. (Harrington v. Eureka Hill Min. Co., 17 Utah 300, 53 P. 737; Hough v. Railway Co., 100 U.S. 213; Railroad Co. v. Horst, 93 U.S. 291; Shearman and Redfield on Negligence, sec. 109; Beach on Contributory Negligence, sec. 426, and the many cases cited.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an action brought by the respondent to recover for the death of his minor son, alleged to have been drowned in the canal of appellant by reason of its carelessness and negligence in constructing and maintaining a walk across said canal. The cause was tried before a jury, and a verdict was rendered in favor of the respondent for the sum of $ 1,975, and judgment entered for that amount. A motion for a new trial was denied. This appeal is from the judgment and order denying a new trial. It is shown that the appellant constructed a foot bridge in question for its own use and convenience. It was not intended for public use, but for the exclusive use of appellant. The bridge was constructed in a manner suited to the purpose for which it was intended. There was no secret mechanism connected with it. Nothing about it was loose or changeable. It was built on the upper side of one of appellant's headgates in said canal. Between the bridge and headgate was a space nine and one-quarter inches in width, left there for the purpose of breaking the ice away that gathered there. The floor of the bridge was composed of three planks laid lengthwise across said canal, and made a solid floor three feet and eight inches wide. It had been in that condition for about four years. It appears from the record that the deceased was a boy about nine years of age and that he and a playmate by the name of John Pierpont were playing about an old shack situated about seventy-five feet from the bridge in question. The boy Pierpont testified that he and the deceased were sitting in the door of the shack eating cookies, and the deceased ran from him, stumbled, and fell through the crack between the headgate and the bridge, into the water; that his foot struck a board in the middle of the bridge. Witness tried to help him out, but the deceased went under the headgate, and was drowned. It is agreed that the place against which deceased struck his foot is a cleat on the framework of the headgate, about two inches thick, and six or eight inches wide, and not a board...

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5 cases
  • York v. Pacific & Northern Ry. Co.
    • United States
    • Idaho Supreme Court
    • 27 juin 1902
    ... ... and cites Thomas v. Pocatello etc. Irr. Co., 7 Idaho ... 435, 63 P. 595. This case holds ... ...
  • Bass v. Quinn-Robbins Co., QUINN-ROBBINS
    • United States
    • Idaho Supreme Court
    • 6 avril 1950
    ...hidden, concealed or unusual danger or trap. Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882; Thomas v. Pocatello P. & I. Co., 7 Idaho 435, 63 P. 595; Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Kansas City v. Siese, 71 Kan. 283, 80 P. 626; Cic......
  • Watkins v. Mountain Home Co-operative Irrigation Co.
    • United States
    • Idaho Supreme Court
    • 2 avril 1921
    ... ... 1020; Work Bros. v. Kinney, 7 Idaho 460, 63 P. 596; ... Thomas v. Pocatello P. & Irr. Co., 7 Idaho 435, 63 ... P. 595; Zienke v. Northern P. R. Co., 8 Idaho ... particular questions of fact to the jury. The exercise of the ... power and the extent of its exercise are left to the ... discretion of the court. ( Olmstead v ... ...
  • Chase v. Washington Water Power Company, a Corp., 6816
    • United States
    • Idaho Supreme Court
    • 24 mars 1941
    ... ... be some evidence of negligence. ( Thomas v. Pocatello ... Power Company, 7 Idaho 435; Charles Le Deau v ... Northern P. Ry Co., 19 ... ...
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