Calhoun v. City of Milan

Ellison, J. The plaintiff sued the defendant city for personal injuries received in falling off a walk, which plaintiff alleged was a sidewalk on one of defendant’s streets. He recovered below and the city has brought the case here. R. B. Ash owned the east half of a block of real estate facing the street, the north line of the street being the south line of the block. He had on the ground his residence, a lumber yard, and a little building on the southwest corner as an office. There was also a carpenter shop and perhaps some other buildings on other parts of the property. ' The grade of the street begins to descend toward the east, just west of the southwest corner of the property, being about one and one half feet below the surface of the block, at the southwest comer where the office building was situated; and about eight feet below the surface at the southeast comer. A prior owner of the property boarded up the. embankment thus left on the line between the property and the street, by driving piling . and nailing boards thereto, making a board-retaining wall to keep the embankment from caving into the street. This prior owner likewise built a plank walk, three feet wide, from the southwest comer of the property, where the office building was, to his residence. Access to this walk from the street was made by constructing two or three steps at the southwest corner, where, as before stated, the surface of the property was one and one half feet above the grade of the street. Afterward the city constructed a sidewalk along the north side of the street (being the south line of the property) on the grade of the street. Plaintiff was a musician and frequently met with other members of a band at the car [401] penter shop aforesaid, which they used as a place of meeting. On the night of the accident, plaintiff had been to the'shop more than once, preparing for a serenade, to be given to some parties in the town. The members, including plaintiff, returned to the shop after the serenade and there dispersed. Plaintiff, in leaving the shop, came across the property, until he got upon the walk which was built on the grounds above the grade of the street, as we have stated. He walked westward in front of the office building, and at a point about midway of the front of the building he stepped, or fell, off the walk, onto the sidewalk on the street— the street, at that point, being about two feet below the upper walk. By this means he received a painful injury, for which he instituted this action, charging defendant with negligence in not having a railing along the walk. This statement we deem sufficient for a disposition of the case on the point we have concluded should govern it. From such statement it will be .observed that plaintiff, while on private property, came upon the walk which was built on private property, and while proceeding along said walk, fell onto the sidewalk in the street aforesaid. Plaintiff, in walking along the walk, was endeavoring to gain -access to the street, but was not yet on the street. The contention urged by counsel for the city, under these facts, is that the city was not bound to furnish safe means of reaching its streets from private property, or to protect those passing over private property from injury by falling into the street. We are of the opinion that such contention is the law as applicable to the duties of cities with regard to its streets. Mulvane v. Topeka, 45 Kan. 45; Young v. Dist. of Col., 3 McArthur, 137; Fitzgerald v. Berlin, 64 Wis. 203; Goodin v. Des Moines, 55 Iowa, 67; Carpenter v. City of Cohoes, 81 N. Y. 21. [402] The plaintiff was not injured while traveling along the street. The street and sidewalk' thereon were not unsafe for persons using such street for travel. The plaintiff was not injured on account of' any defect in the street, but on account of being precipitated from unguarded private property into the street. In such cases, the city is not liable for resulting injuries. 2 Beach, Mun. Corp. 1228. This case is clearly distinguishable Lrom that class of cases where the municipality is held liable for injuries caused by excavations, or other dangerous agencies, on private property, but so near the street as to become a means of injury by a misstep, or other accidental contact with such agency, by one traveling on the street. In the foregoing we have treated the walk leading to the Ash residence as on private property, outside the limits of the street. But it appears that, in point of fact, such walk was within the actual limits of the street, as originally laid out, though not so regarded by the owners of the property, or the defendant city. The city never so recognized it. The city graded the street and built the sidewalk, as though the embankment was the true line dividing the street from the property. The city never recognized the walk leading to the residence as a public walk, nor did it exercise - control or supervision thereof. Under such circumstances, we regard the case just as if the private walk had been, in point of fact, within the true limit of the private property, as originally established by survey, and as it was supposed to be. Fitzgerald v. City of Berlin, 64 Wis. 203. Plaintiff has urged that the record does not contain the whole evidence. But we must accept it as presenting here the points in controversy between the [403] parties, and from such record, such facts appear affirmatively as show that plaintiff has no cause of action for the injuries received. The result of the foregoing is that the defendant’s demurrer to the evidence should have been sustained and we must therefore reverse the judgment. All concur.