Wells v. City of Lisbon

• Citation: 128 N.W. 308,21 N.D. 34
• Decision Date: 12 October 1910
• Court: United States State Supreme Court of North Dakota

128 N.W. 308

21 N.D. 34

JAMES A. WELLS v. CITY OF LISBON

Supreme Court of North Dakota

October 12, 1910

Appeal from the District Court of Ransom county; Allen, J.

Action for loss of a pair of mules in an excavation in the street of the defendant and appellant. Verdict and judgment for plaintiff and respondent.

Affirmed.

Sidney E. Adams, for appellant.

City need only place a light that will warn reasonably prudent people of danger. Karrer v. Detroit, 142 Mich. 331 106 N.W. 64; Slaughter v. Huntington, 64 W.Va. 237 16 L.R.A.(N.S.) 459, 61 S.E. 155; Garnetz v Carroll, 136 Iowa 569, 114 N.W. 57.

Due care is presumed. Swift & Co. v. Holoubek, 60 Neb 784, 84 N.W. 253; O'Connor v. Connecticut R. & Lighting Co. 82 Conn. 170, 72 A. 934.

Where plaintiff's proof shows his contributory negligence, directed verdict is proper. Prideaux v. Mineral Point, 43 Wis. 524, 28 Am. Rep. 558; Hoth v. Peters, 55 Wis. 405, 13 N.W. 219; Mares v. Northern P. R. Co. 3 Dak. 336, 21 N.W. 5; 29 Cyc. Law & Proc. p. 630 (B) and cases cited; 27 Cyc. Law & Proc. p. 605 (III); Gleason v. Suskin, 110 Md. 137, 72 A. 1034.

Chas. S. Ego, for respondent.

City must protect its streets in a reasonably prudent manner. Chacey v. Fargo, 5 N.D. 173, 64 N.W. 932; Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676; Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517; Blessington v. Boston, 153 Mass. 409, 26 N.E. 1113; Colorado Mortg. & Invest. Co. v. Rees, 21 Colo. 435, 42 P. 42.

Where evidence of negligence is controverted, finding of jury is decisive. Finney v. Northern P. R. Co. 3 Dak. 270, 16 N.W. 500; Franz Falk Brewing Co. v. Mielenz Bros. 5 Dak. 136, 37 N.W. 728; Studebaker Bros. Mfg. Co. v. Zollars, 12 S.D. 296, 81 N.W. 292; Drinkall v. Movius State Bank, 11 N.D. 10, 57 L.R.A. 346, 95 Am. St. Rep. 693, 88 N.W. 724; Flath v. Casselman, 10 N.D. 420, 87 N.W. 988; Taylor v. Jones, 3 N.D. 235, 55 N.W. 593; Larson v. Grand Forks, 3 Dak. 307, 19 N.W. 414; Bishop v. Chicago, M. & St. P. R. Co. 4 N.D. 536, 62 N.W. 605. Lights must be secured as well as placed. Schumacher v. New York, 166 N.Y. 103, 59 N.E. 773.

Refusing a directed verdict was not error. Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676; Ludlow v. Fargo, 3 N.D. 485, 57 N.W. 506; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; Gagnier v. Fargo, 12 N.D. 219, 96 N.W. 841; Sutton v. Snohomish, 11 Wash. 24, 48 Am. St. Rep. 847, 39 P. 273; Buck v. Biddeford, 82 Me. 433, 19 A. 912; Wakeham v. St. Clair Twp. 91 Mich. 15, 51 N.W. 696; Fletcher v. Ellsworth, 53 Kan. 751, 37 P. 115.

If notice to city states facts clearly and substantially it is sufficient. Dubois County v. Wertz, 112 Ind. 268, 13 N.E. 874; Howard County v. Jennings, 104 Ind. 108, 3 N.E. 619; Powers v. St. Paul, 36 Minn. 87, 30 N.W. 433; Shepard v. Easterling, 61 Neb. 882, 86 N.W. 941; LaFlamme v. Albany, 158 N.Y. 699, 53 N.E. 1127; Young v. Douglas, 157 Mass. 383, 32 N.E. 354.

Defects were waived. Dundas v. Lansing, 75 Mich. 499, 5 L.R.A. 143, 13 Am. St. Rep. 457, 42 N.W. 1011; Griswold v. Ludington, 116 Mich. 401, 74 N.W. 663; Wright v. Portland, 118 Mich. 23, 76 N.W. 141; Wheeler v. Detroit, 127 Mich. 329, 86 N.W. 822; Rusch v. Dubuque, 116 Iowa 402, 90 N.W. 81; Werner v. Rochester, 149 N.Y. 563, 44 N.E. 300.

If notice was defective, notice of its rejection on that ground should have been given. Abbott, Mun. Corp. §§ 484-1061; Connor v. Salt Lake City, 28 Utah 248, 78 P. 479; Chamberlain v. Saginaw, 135 Mich. 61, 97 N.W. 156.

OPINION

SPALDING, J.

The defendant, the city of Lisbon, is a municipal corporation. The plaintiff on the 2d day of January, 1907, was the owner of a dray and a pair of mules, and one Laren was employed as the driver thereof in the business of draying. The city of Lisbon was engaged on that day in laying water mains on certain streets, particularly near the south side of Sixth street where it crosses Elm street, Sixth street running east and west and Elm street north and south. A ditch had been excavated along Sixth street for the purpose named, about 8 feet deep, and it extended from both the east and west into Elm street, leaving a space from 14 to 18 feet wide in the center of Elm street unexcavated. The evening of January 2d was very stormy and the wind blew with considerable force, drifting the snow. Workmen had been engaged for some time on this excavation, and on that evening ceased work about 5:30 o'clock, when a plank was placed across the intact portion of Elm street, one end resting upon a pile of dirt and the other upon some cans about 30 inches above the surface of the roadbed, and a lighted lantern was suspended from the center of the plank. Testimony was submitted showing that other lights were placed in different localities in the vicinity of the excavations, but there is no evidence that at the time of the accident any light was visible except the one in the center of Elm street. Testimony was also received that thirty minutes after the lights are claimed to have been placed, there were no lights or barricades on either of the ditches. Other witnesses testified that they saw several lights shortly after the time a workman testified to placing them. About 6:15 or 6:30 that evening, Laren drove toward this spot with plaintiff's mules and dray. He testifies that he saw the one light in the center of the street when about 40 feet from it; that the mules were walking; that he could see no pile of dirt ahead; that he pulled the mules up and turned to the left, between the end of the ditch and the curb, on the assumption that the ditch or obstruction was where the light was placed, and that, as far as he could see, there was an unobstructed passage to the side of the light. The snow was drifted so as to conceal the pile of dirt which had been thrown from the excavation, and his mules floundered as they reached the drift, and fell into the ditch, and received injuries, which resulted in their death. This action is brought to recover the value of the mules. The answer admits that the mules were killed by falling into the ditch, denies that the streets were dangerous, unsafe, or defective, and that the city failed to place warning signals at or near the excavation, and alleges that it used due care and diligence in guarding the same with lanterns and barricades, and alleges that the injury complained of was caused solely by the negligence and want of ordinary care on the part of Laren, the driver, and that the ditch was guarded by lights to warn teamsters and other persons using said streets of the existence of the obstacles; that Laren was aware of such warning signals, and notwithstanding the same, and without making any examination of the highway on which he was driving, started to drive around said lights and barricade, and in so doing, in the dark and in the storm, drove into the snow bank, in which his mules floundered, causing them to fall into the ditch, whereby they were injured as alleged.

The jury returned a verdict in favor of the plaintiff, assessing his damages at $ 450, upon which judgment was duly entered. The case is here on appeal from the judgment and from an order denying appellant's motion for judgment non obstante or for a new trial.

The errors assigned relate to the orders denying defendant's motion for a directed verdict at the close of plaintiff's case in chief, its motion for a directed verdict at the close of the whole case, to the admission of certain evidence, and to certain instructions of the court. We shall consider them separately.

1. In prosecuting works of the nature described in this complaint, a municipal corporation is bound to do so with due regard to the rights of travelers on the street in the vicinity of the excavation, and it must use such precautions as are reasonably necessary for the protection of such travelers. The degree of care required of the municipality is ordinary care, and what constitutes ordinary care depends upon the circumstances of the particular case. Elliott, Roads & Streets, § 472, and authorities cited. The degree of care requisite may depend largely upon the atmospheric and other conditions, greater care being required to constitute ordinary care in a snowy, dark, or stormy night than in a clear, moonlight night.

In the case at bar there is no evidence that more than one lantern was present in the vicinity of the excavation at the time of the accident, and this within an hour after the workmen ceased their labors and placed the light or lights. The testimony as to the placing of other lights is indefinite as to where located, or how they were protected, or to what extent they warned travelers. If, as a fact, several lights were placed, the failure in less than an hour of all but one was evidenced, from which the jury might conclude that they were inadequate or improperly placed to serve the purpose contemplated. The location of one light on the only safe part of the street, hung from a plank 30 inches above ground, could rightly be considered by the jury an act of negligence in itself, and as warning the traveler away from the safe portion of the street, and tending to turn him into the unsafe portion, just as it did in this instance. In short, the nature of the evidence regarding the character of the lights and their location is such that the most that can be said in favor of appellant is that it was sufficient to sustain a verdict of negligence on the part of the city. We need not consider the question of barricades and other methods of warning to protect travelers, because no claim was made on the trial that any precautions were taken by the placing of lanterns, and the action was tried on the theory that lanterns were the only warnings used.

2. Was Laren, the driver, negligent? Like the question of negligence on the part of the...