Town of Salida v. McKinna

• Citation: 27 P. 810,16 Colo. 523
• Parties: TOWN OF SALIDA v. McKINNA.
• Decision Date: 05 October 1891
• Court: Colorado Supreme Court

27 P. 810

16 Colo. 523

TOWN OF SALIDA v. McKINNA.

Supreme Court of Colorado

October 5, 1891

Appeal from district court, Chaffee county; WILLIAM HARRISON, Judge.

Syllabus by the Court

1. An incorporated town may be held liable for damages occasioned by a defective street, provided there has been a dedication of the street to public use, and an acceptance of such use by the proper authorities.

2. Evidence that a street through the main business part of a town is a public thoroughfare, generally traveled, and that the municipal officers have voluntarily assumed to keep the same in repair, is sufficient prima facie to warrant a finding that the street has been duly dedicated and accepted as a public highway.

3. Objections to pleadings and evidence, raised for the first time in this court, must be considered, if at all, with much allowance.

4. Upon a cause of action to recover for certain expenses, evidence that the expenditures 'might amount to $200 probably,' is too indefinite to found a recovery upon.

5. Even if a husband may in extreme cases recover for his services in nursing his wife, where her injuries have been caused by the negligence of another, the recovery must be for the value of his services as a nurse, and not for the amount of wages lost by abstaining from other employment.

6.

When certain testimony has been erroneously admitted, and submitted to the jury, the error may, under certain circumstances, be cured by a modification of the verdict and judgment, so as to save the necessity of a new trial.

G. K. Hartenstein, for appellant.

R K. Hagan, for appellee.

ELLIOTT, J., ( after stating the facts as above.)

The facts of this case are practically undisputed, the defendant having offered no testimony at the trial. Two questions only require consideration upon this appeal.

1. It is admitted by the answer that the defendant below was, at the time of the happening of the injury complained of, a duly-incorporated town in this state. It is conceded by counsel for appellant that such a municipality may, under certain circumstances, be held liable for damages occasioned by a defective street, provided there has been a dedication of the street to public use, and an acceptance of such use by the proper authorities. But in this case it is contended that neither the allegations nor the evidence show that the street where the injury occurred had been thus dedicated and accepted, so as to make it incumbent upon the town to keep the same in repair. What does the record disclose in regard to this contention? In the complaint it is alleged, in substance, that it was the duty of the town to keep its streets in good order; and that the street and sidewalk where the injury occurred were at the time common thoroughfares, constantly and always used by the citizens of said town and others as such. These averments, though not according to the most approved precedents, are sufficient, in substance, to support a judgment in favor of plaintiff, the defendant having joined issue upon them and gone to trial and verdict without objection. On the trial evidence was given by competent witnesses to the effect that the excavation where the injury occurred was in a street running through the main business part of the town; that both sides of said street were occupied by business houses and residences; that banking-houses, post-office, opera-house, stores, and doctors' offices fronted upon the street; that the street was a public thoroughfare, generally traveled by the citizens of Salida; and that the excavation was in the sidewalk on the main residence side of the street. The street and water commissioner testified, in substance, as follows: 'The excavation was commenced about the middle of February, and completed about the middle of April, 1887. I gave the owner of the adjacent property, who made the excavation, notice, and he put up a fragile fence. That was in March, 1887. He kept up the fence for some weeks, and then it fell down. I reported the fact to the mayor, and he told me to request the owner to put up red lights. The next night I saw two red lights, one at each corner. The fence did not remain up more than three or four weeks. After that, temporary fences were put up at the corners. I think there had not been any lights there for some time before the accident. The owner said it was impossible to keep a fence up. I reported the same to the committee on streets, and they told me to have him put up red lights. I reported him so often I got tired. I reported to the mayor after he allowed...