O'Leary v. City of Mankato

Young, J. The defendant, the City of Mankato, is a municipal corporation, having the care, supervision and control of all streets within its limits, and the power to levy a special tax on all taxable property of the city, for the purpose of constructing, maintaining and repairing its streets. Sp. Laws, 1868, p. 131, § 1; p. 129, § 2. The provisions of its charter on these subjects are nearly identical with those of the charter of the city of Minneapolis, cited in Shartle v. Minneapolis, 17 Minn. 308, 312, 313. Across Second street, the most frequented of all the streets in the city, with perhaps one exception, there had for a long time been an open ditch, or drain, three feet deep, about three feet wide at the bottom, and from six to eight feet Avide at the top. Over this ditch was a bridge, on the Avestorly side of the street, and four or five feet from the. sideAvalk. This bridge was about eighteen feet Avide, and the travelled track in the street led up to and over it. A few days prior to August 10, 1872, the street commissioner of the city had removed this bridge, and built a new bridge across the ditch, in the centre of the street, and about nineteen feet from the sideAvalk on the westerly side. The new bridge was of about the same width as the old, and covered a few feet of the ditch which had been covered by the old bridge, and about four feet of this new bridge was opposite the old track. Within two rods of the ditch, the track to the neiv bridge turned off abruptly from the old track. There had not been much travel along that part of the street opposite the new bridge; the street was passable, but the track was rough. No guard or protection of any kind was *68 placed where the old bridge had stood. On the night of August 10, which was very dark, the plaintiff, who did not know of the removal of the old bridge, was driving through Second street. Following the beaten, travelled track, the-wheels on the left side of his wagon went upon the bridge, and those on the other side into the ditch. The plaintiff' was thrown from the wagon, and himself, his horse, and his wagon were all injured, for which injuries he seeks redress-in this action. The facts stated present a case, of gross and culpable-neglect, on the part of the defendant, of its duty to keep its-streets in a safe condition. The accident which happened to-the plaintiff was nearly certain to befall any one, who, without knowing of the change of bridges, should pursue, in the night time, the usually travelled track. The plaintiff’s injuries were the direct and natural consequence of the defendant’s negligence, and he is clearly entitled to a recompense-in damages. Shartle v. Minneapolis, 17 Minn. 308 ; Cleveland v. St. Paul, 18 Minn. 279 ; Lindholm v. St. Paul, 19 Minn. 245. It is difficult to see in what manner the defendant could have been prejudiced by the testimony of Alderman Hoeny a member of the street committee of the city council, as to-his personal knowledge of the change of the bridges, the duties of the street committee, the appropriation by the-council of $200, to be expended by the alderman of the-second ward, and the expenditure of part of this sum in grading Second street at other points than that at which-the accident happened. Granting that all this evidence was-immaterial, still the defendant’s negligence, and the damage to plaintiff, were so clearly made out by competent and undisputed proof, (the defendant offering no evidence whatever, ) that the admission of this immaterial evidence could not have affected the verdict, and furnishes no ground for a. new trial. Evidence was received, under objection, that after the-accident, the defendant widened the bridge, so as to cover- *69 the exposed portion of the ditch. It is doubtless true, as urged by the defendant, that this evidence had no tendency to prove notice to the defendant of the dangerous condition •of the street, at the time of the accident; and it was unnecessary for that purpose, for the defect in the street had been caused by the act of the street commissioner, and was known to that officer and to Alderman Hoerr. It had, moreover, existed several days — long enough to charge the ■city with constructive notice, if that were necessary. The evidence was, however, competent, as having some, though not a very strong, tendency to show that the condition of the street was such that it was at least proper that the ditch should be covered at this point. Westchester & Phila. R. Co. v. McElwell, 67 Penn. St. 311. It clearly appeared by other testimony that, without any protection, the place was •dangerous, and that some protection was not only proper, but highly necessary to the safety of travellers; and there is no reason to suppose that too much weight was given by the jury to the evidence objected to. The first instniction given by the court at the plaintiff’s request is conceded by the defendant to be correct, as an abstract proposition; and certainly, coupled with the qualification added by the court, it was not likely to mislead the jury in the manner suggested by the defendant’s counsel. The first, third, and sixth instructions requested by defendant are substantially embraced in the general charge given by the judge of his own motion, and, moreover, the subject to which they relate, viz: the plaintiff’s liability for his own •contributory neglig>ence, is disposed of by the specific finding of the jury, “that the plaintiff was not guilty of any negligence which helped or contributed to produce the accident.” The second request was properly denied. It was not ■claimed by the plaintiff that the condition of the street was, in itself, proof of negligence. The negligence charged in the complaint, and proved by plaintiff’s witnesses, was not merely that defendant permitted the street to be in a defec *70 tive condition, but that tbc defendant itself put the street into that condition, by the removal of the bridge, leaving the site of the former bridge partially uncovered. The court had already instructed the jury “ to find whether, under all the circumstances, it was negligence on the part of the city to leave the improvement in the condition it was and it would not be proper to single out one of the circumstances,, and instruct the jury that such circumstance, of itself, “does not necessarily charge thé city with negligence.” The fourth and fifth instructions requested had no application to the evidence in the case. The danger into which the plaintiff fell, was not caused merely by the existence of the ditch, with which he was acquainted, but by the uncovering of the ditch by the removal of the bridge, of which he knew nothing. In its former condition, the street was considered safe enough to be. one of the principal thoroughfares of the city, and there is nothing to show that the plaintiff, as a prudent man, was not justified in using it as he did. These remarks apply to the seventh instruction asked, which was, however, given with a necessary qualification, the instruction as qualified being sufficiently favorable to the defendant. The order of the district court is affirmed.