City of Denver v. Dean

Helm, J. It was the duty of the municipal authorities of Denver to exercise ordinary care in keeping the sidewalks free from defects and obstructions. The conclusion reached in City v. Dunsmore, 7 Colo. 328, with reference to streets, applies with equal fitness to the subject of sidewalks, and the reasons there given need not be restated. A failure to perform this duty might lay the foundation of municipal liability. But since the city did not construct the sidewalk, coal hole or cap here in question, and the accident was not occasioned by any act of the city, its officers or agents, before plaintiff could recover damages from it for the injury sustained, he was required to show that the corporation had notice of the defective cap; also that it was in possession of such notice a sufficient length of time before the accident to have cured the defect and prevented the injury. Such notice might have been either actual or constructive. The ninth instruction given in the case announces two propositions on the subject of notice: First, that the knowledge, concerning defects like the one in question, of the police of the city, is not actual notice to the corporation; second, that such knowledge, if gained in pursuance of the officer’s duties and employment, may be the means of knowledge, so as to charge the municipality with constructive notice. In our judgment both propositions are wrong. Whether a certain matter is in the line of a particular officer’s employment is to be determined by construction of the statute or ordinance prescribing his duties; hence such determination is a question of law. Without discussion, but not without careful examination. [378] we are prepared, to hold that the ordinance before us sufficiently charges the chief of police with the care of coal holes and caps, as well as other obstructions, in or upon the sidewalks. Hence the court below should have instructed the jury that, if the officer had personal knowledge of the defective cap, the city should be charged with actual notice; and that, if such actual notice existed for a length of time reasonably sufficient to have had the cap properly bolted before the accident, they might find for plaintiff, provided other essential questions of fact were, upon the evidence, resolved by them in his favor. But the knowledge of the chief of police could not, in and of itself, be constructive notice to the city; nor could the city be charged with this kind of notice by the communication of such knowledge to others. If information of a latent defect, possessed by the chief of police, were not acquired in the line of his official employment, but were communicated by him to some officer charged with the duty of repairing, or causing to be repaired, such defects, the notice to the city would be actual, and not constructive; while if, in such case, the chief repeated the information to private citizens, or to other officials whose duties, like his, in no way related to the matter, the city would in law be charged thereby with no notice at all, either actual or constructive. 1 Dill. Mu’n. Corp. note 1, § 237, and cases; note to Bank v. Whitehead, 36 Amer. Dec. 189; 2 Dill. Mun. Corp. § 1025, and notes. There seem to be but two ways in which a municipal corporation can be charged with constructive notice of defects in its sidewalks so as to be held liable forinjuiies occasioned thereby; there being no municipal responsibility in the original construction, and no affirmative municipal acts through which the defects are produced: First. Where an exercise of ordinary care on its part involves the anticipation of defects that are the natural and legitimate result of use and climatic influences. A neglect of the proper officer to make a sufficiently frequent and [379] careful examination of a particular structure is sometimes held to charge the city with constructive notice, even though the defect be latent. Illustrating this kind of constructive notices are such cases as Furnell v. City, 20 Minn. 117, and Rapho & West Hempfield Tps. v. Moore, 68 Pa. St. 404, where the respective injuries resulted from decayed stringers under the sidewalk and rotten timbers in the bridge. The timbers were sound when put into the sidewalk and bridge, but both had been in use so long that decay might reasonably be expected. The defects in both instances were only discoverable by a skilled and careful inspection. It is not contended that the principle above stated, underlying this class of cases, is applicable to the case at bar. Second. Constructive notice also exists where the corporation has had the means of knowledge for a sufficient time to have remedied the defect. The finding of the jury for plaintiff in the case at bar must, under the ninth instruction, have been based upon the proposition that the knowledge of Lomery was means of knowledge to the city, and that the city was thereby charged with constructive notice of the defective cap. It may be that the phrase “means óf knowledge” fairly includes cases of neglect to anticipate and prevent certain defects, — • cases covered by the foregoing discussion; but, with that exception, we think the phrase applicable only to visible defects or obstructions,— defects or obstructions that are open and notorious; “so notorious as to be observable by all.” Shear. & R. Neg. §§ 148, 407, and cases; 2 Dill. Mun. Corp. note 3, § 1026, and cases; Weisenberg v. City of Appelton, 7 Amer. Rep. 43, note, and cases. Illustrating the inference of notice through “means of knowledge are cases like that of Dewey v. City, 15 Mich. 306, where the injury resulted from an uncovered coal hole, and that of Mayor v. Sheffield, 4 Wall. 189, where it was caused by a stump left projecting through the sidewalk. But it is conceded by both parties to this case that the [380] defect now under consideration was latent. In the undisputed language of the complaint, “ there was nothing in the appearance of the coal hole or its surroundings to indicate danger to the most careful observer.” Therefore, aside from the fact "that the knowledge of Lomery as a city official could not be means of knowledge to the city, it cannot be said that there was anything else before the jury to constitute such means of knowledge. We are not permitted to hold that the errors of the court in the ninth instruction were without prejudice to appellant. Though, under a proper statement of the law, the jury might perhaps have found the city charged with actual notice, it is not for us to say that such must have been their conclusion. It was their province to determine whether or not the chief of police did have personal knowledge of the defective cap; and also whether such knowledge, if found to exist, had been acquired a sufficient length of time previous to the accident. 2 Dill. Mun. Corp. § 1026. It does not necessarily follow, because the jury, under the law as submitted to them, found from the conduct and declarations of Lomery and others that the city had means of knowledge, and therefore constructive notice, that, under "a proper instruction, they would have Lomery possessed of adequate information for a sufficient period to charge the city with actual notice. For the errors mentioned, judgment must be reversed, and it is unnecessary to discuss the remaining assignments. Reversed.