Thoorsell v. City of Virginia
| Decision Date | 20 July 1917 |
| Docket Number | 20,406 - (197) |
| Citation | 163 N.W. 976,138 Minn. 55 |
| Parties | JOHN H. THOORSELL v. CITY OF VIRGINIA |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $10,000 for personal injuries. The answer among other matters alleged that defendant is a municipal corporation subject to the terms of chapter 84 A, G.S. 1913, and acts amendatory thereof, known as the Workmen's Compensation Act; that the plaintiff herein was an employee of one John Mesberg in defendant city; that the injury complained of was received in the course of and arising out of his said employment; that said John Mesberg and the plaintiff herein were both subject to the terms of that act. The case was tried before Hughes J., who denied defendant's motion for an instructed verdict, and a jury which returned a verdict for $2,500. Defendant's motion for judgment notwithstanding the verdict or for a new trial was denied. From the judgment entered pursuant to the order for judgment, defendant appealed. Affirmed.
Municipal corporation -- unguarded hole in pavement -- liability of city.
In this action to recover for injuries sustained by plaintiff from tripping and falling in a hole in a city street, it is held:
(1) The evidence justified a finding that defendant was negligent in not guarding or lighting the hole at night.
(2) Plaintiff was not guilty of contributory negligence as a matter of law and the evidence sustains the finding of the jury that he was not.
(3) The damages are not excessive.
S. S Dahl, City Attorney, and Montague & Montague, for appellant.
Archer & Pickering, for respondent.
Plaintiff recovered a verdict of $2,500 for the injuries received in the accident involved in this case. Defendant appeals from an order denying its motion for judgment non obstante, or for a new trial.
The usual questions were argued, negligence, contributory negligence, damages. The following is an outline of the facts as the jury was justified in finding them:
Central avenue, one of the principal streets in the defendant city, has a bithulithic pavement. September 10, 1915, a piece of this pavement was taken up to enable a property owner to install a water pipe. The hole thus made started about 6 feet from the westerly curb, extended 6 feet towards the middle of the street, was 2 feet in width, and 4 inches deep. The slab of paving material taken out was placed on a strip between the street and the sidewalk. From September 10 to September 17, the hole was protected by a railing and by red lights at night. The work of installing the water pipe was completed at the last named date, the city filled the hole with sand and gravel, and took away the railing and lights. The slab of paving material was not replaced, the object of this being to allow the fill in the hole to thoroughly settle before the concrete base and bithulithic cap were replaced. This condition continued until the evening of October 19, 1915, the time of the accident.
Plaintiff resided in a flat on Central avenue nearly opposite the point where this hole was. Shortly after 6 o'clock in the evening of October 19, he was being taken to his home on the rear seat of a motorcycle driven by a fellow employee. When opposite the flat the motorcycle slackened its speed to 2 or 3 three miles an hour, and plaintiff stepped off on the lefthand side with his face toward the wheel. He turned around and had taken 3 or 4 steps in the direction of the flat when he stepped into the hole in the pavement, fell and sustained serious injuries. The evidence, while conflicting, would warrant a finding that the hole was 4 inches deep at this time. It was dusk, and plaintiff did not see the hole or think of its being there.
1. We are of the opinion that the question whether the city was negligent in permitting this hole in the street to remain unguarded and without warning lights at night was, on the evidence, for the jury to decide, and that we ought not to disturb its decision that the city was guilty of a breach of its duty to the people using the street. No question of notice to the city of the defect is involved. We do not say that defendant was negligent but simply that the question was one for the jury to pass upon, and that its decision is not so manifestly wrong as to warrant our setting it aside after the trial court has approved it. It is not difficult to see how such a hole in the pavement of a busy street might be a danger to persons traveling along it, especially after dark. The evidence was that the loose dirt and gravel placed in the hole when the barrier and light were taken away, was constantly being thrown out by passing vehicles, was replaced from time to time, but that at the time plaintiff met his accident the depression was something like 4...
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