Todd v. City of Hailey

• Decision Date: 09 November 1927
• Docket Number: 4707
• Citation: 45 Idaho 175,260 P. 1092
• Parties: S.E. TODD and HATTIE J. TODD, Respondents, v. THE CITY OF HAILEY, Blaine County, Idaho, Appellant
• Court: Idaho Supreme Court

260 P. 1092

45 Idaho 175

S.E. TODD and HATTIE J. TODD, Respondents, v. THE CITY OF HAILEY, Blaine County, Idaho, Appellant

No. 4707

Supreme Court of Idaho

November 9, 1927

DAMAGES-APPEAL AND ERROR-DEFICIENCY IN COMPLAINT-EFFECT OF AMENDMENT-PLEADING-TRIAL COURT'S DISCRETION-MUNICIPAL CORPORATIONS-CONSTRUCTIVE NOTICE-EVIDENCE-PROXIMATE CAUSE OF INJURY-RULE ON CONFLICTING EVIDENCE.

1. In view of amendment of complaint during trial curing any deficiency in original pleading, defendant may not complain of the prior overruling of demurrer to the complaint.

2. Amendment of complaint, simply amplifying or extending the time during which dangerous condition of sidewalk complained of existed, bearing only on question of notice to city, did not change cause of action.

3. Amendments of pleadings rest largely in discretion of trial court, and, unless exercise of such discretion deprives the opposite party of some substantial right, action of the court will not be disturbed.

4. Error cannot be predicated on the allowance of amendment of complaint at trial, defendant refusing offered privilege of application for continuance for surprise.

5. Evidence of defect in a sidewalk, from planks forming bridge over ditch intersecting sidewalk being off, having existed for a sufficient length of time to constitute constructive notice to the city, held sufficient to go to the jury.

6. Evidence of defect in sidewalk by reason of which plaintiff stepped into uncovered ditch, being proximate cause of her injury, held sufficient for the jury, notwithstanding conflict in testimony of doctors.

7. A verdict based on substantial evidence, notwithstanding conflict therewith, will not be disturbed on appeal.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Dana E. Brinck, Presiding Judge.

Action for damages for personal injuries. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

L. A Bresnahan and Sullivan, Sullivan & Van Winkle, for Appellant.

For a failure of a municipality to repair in general it is not liable unless (a) it has actual notice of the defect, or (b) of such facts and circumstances as would by the exercise of reasonable diligence lead a prudent person to such knowledge. The only negligence which can be attributed to a municipality is a failure to act, and there can be no obligation to act if the defective condition is neither known, nor should have been known by the municipality. The city is not an insurer against accident. (6 McQuillin, Munic. Corp., sec. 2807, p 5718; Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660; Dillon, Munic. Corp., secs. 1024 1025; 28 Cyc. 1477.)

The rule of permitting amendments of pleadings should not be applied so liberally as to enable litigants to alter their modes of presenting cases in respect to both law and facts, so as to meet the views of the court as they conceive them to be. (Elder v. Idaho-Washington etc. Ry. Co., 26 Idaho 209, 141 P. 982; Fralick v. Mercer, 27 Idaho 360, 148 P. 906; Palmer v. Utah etc. Ry. Co., 2 Idaho 382, 16 P. 553.)

Leave to amend should not be granted where it is apparent that pleader cannot truthfully do so. (31 Cyc. 373-422.)

Matters inconsistent with or repugnant to the substantial allegations of the original bill cannot be introduced by amendment. (1 Ency. Pl. & Pr., p. 473.)

C. O. Stockslager and Bothwell & Chapman, for Respondents.

"It is not error at the beginning of a trial to permit an amendment, otherwise proper, when the adverse party is offered a continuance if surprised and no surprise or prejudice is claimed and he elects to proceed with the trial." (Green v. Smith, 37 Idaho 502, 217 P. 604.)

"Where trial court, because of the allowance of an amendment at the trial, indicated a willingness to grant a continuance, appellant cannot take chances on the result of the trial and lose, and then to be heard to complain of the action of the trial court in allowing the amendment." (Power v. Security S. & T. Co., 38 Idaho 269, 222 P. 779; Vollmer-Clearwater Co. v. Union Warehouse & S. Co., 43 Idaho 37, 248 P. 866.)

"Amendments of pleadings rest largely in the discretion of the court, and unless the exercise of such discretion deprives the complaining party of some substantial right, the action of the trial court will not be disturbed." (Small v. Harrington, 10 Idaho 499, 79 P. 461; Idaho Placer Min. Co. v. Green, 14 Idaho 294, 94 P. 461.)

"Where the court allows an amendment to the complaint and thereafter offers to continue the case at the cost of plaintiff, and the defendant indicates that he does not desire the case continued, held, that the court did not err in permitting the amendment." (Lorang v. Randall, 27 Idaho 259, 148 P. 468.)

There is no definite rule as to what length of time would be required to justify an inference of notice to a city of defects in a sidewalk. Where a plank in a sidewalk was broken "several days" before the accident the question of time was for the jury. (Laurie v. City of Ballard, 25 Wash. 127, 64 P. 906.)

Where the excavation had been left open, on a well-traveled street, for two or three days before the accident, the question of time was a question for the jury. (Holitza v. Kansas City, 68 Kan. 157, 74 P. 594.)

The jury, under proper instructions, must be left to determine from the evidence what lapse of time is necessary to charge a city with constructive notice, and an instruction which takes away this question from them is erroneous. (City of Savannah v. Trusty, 98 Ill.App. 277.)

Time is a question of fact for the jury and the inference may be drawn from the magnitude of the defect, its conspicuity, and the length of time of continuance, or its notoriety. (28 Cyc. 1390, 1500.)

Actual observation by all passerby is not necessary, but it is sufficient if the defect is of such character as to be noticeable to those who look. (Rosevere v. Osceola Mills, 169 Pa. 555, 32 A. 548; McKissick v. City of St. Louis, 154 Mo. 588, 55 S.W. 859; City of Covington v. Jones (Ky.), 79 S.W. 243.)

"The rule requiring notice is not applied, however, where the defect is one in construction, as distinguished from a mere condition of repair . . . . the municipality being charged ab initio with defects of its own making or leaving in the construction or repair of any portion of the highway." (28 Cyc., p. 1386, and cases there cited.)

"A verdict on substantially conflicting evidence will not be disturbed." (Ainslee v. Idaho World Printing Co., 1 Idaho 641.)

ADAIR, Commissioner. Babcock, Featherstone, CC., Wm. E. Lee, C. J., Givens, Taylor and T. Bailey Lee, JJ., concurring.

OPINION

ADAIR, Commissioner.--

This is an action for damages brought by respondents, husband and wife, on account of personal injuries sustained by the wife as a result of a fall caused, while traveling at night upon a public sidewalk, by stepping into an uncovered irrigation ditch which crossed said sidewalk, and which ditch also belonged to, and was maintained by, the appellant city. It is alleged that planks, forming a small bridge across this lateral where it intersected the cement sidewalk, had been removed, and the lateral left uncovered, so as to be a menace to pedestrians passing that way at night, and that no light or signal was displayed there to show the dangerous condition in which this particular place had been left. The appellant denied all the allegations of the complaint, and specifically denied any negligence on its part, and alleged negligence on the part of Mrs. Todd contributing to her injuries, if any were by her sustained.

The verdict of the jury was for the plaintiffs, and from the judgment based thereon this appeal is taken. The eight assignments of error may be grouped under two general heads, and thus considered will dispose of all the questions presented here.

It is urged that the trial court erred in permitting an amendment to the complaint during the course of the trial. A resume of the record is necessary to understand the contention made in this regard. To the original complaint, a demurrer was sustained. An amended complaint was thereafter filed, which was also held to be vulnerable on demurrer. A second amended complaint was thereafter filed, and the demurrer thereto was overruled, and the appellant thereupon answered as above indicated. In each of the first two complaints it was alleged, in effect, that on or about the fifteenth day of July, 1923, this ditch, which had theretofore been properly and safely covered for a long period of time, "had had the boards removed and the lateral left uncovered," and that "on the night aforesaid" the plaintiff stepped into the ditch and was injured. In the second amended complaint, it was alleged "that on or about the fifteenth day of July, 1923, the boards covering said lateral were removed therefrom," and that plaintiff "on the night aforesaid" stepped into the ditch and the injury resulted. In none of the three complaints were there any further allegations to the effect that the defective condition of the walk had extended over a longer period of time, nor were there any allegations that the officers of the city had either actual or constructive notice of this condition. At the trial, after certain witnesses had testified, the respondents called a witness and attempted to prove by her that this particular defective condition had existed there for some days previous to the night on which Mrs. Todd fell. The court sustained objections to such proffered evidence, ruling that under the allegations of the amended complaint the plaintiff must be held to the proof of the facts therein stated, that is, that the planks covering the bridge were removed on July 15, 1923. The respondents then...