City of Grand Forks v. Paulsness

Ellsworth, J. The state -of fact out of which the cause of action involved in this appeal arises may be stated as follows: — 297 — In the months of November and December, 1904, the city of Grand Forks owned and operated a public waterworks plant, and one of the mains thereof extended along De Mers avenue, one of the principal streets of the city, to a point thirty feet or more from the west end of a bridge crossing the Red River of the North to the city of East Grand Forks located on the eastern bank. At this point there was connected with the water main a two-inch pipe intended to provide water service to consumers in East Grand Forks, which pipe, from its junction with the main, extended underground below the western approach to the bridge, and thence to the eastern bank beneath the bed of the river. That part of the west bank of the river under which this service pipe extended was composed of soil, a peculiar quality of which caused it to be constantly sliding or moving toward the bed of the river, and as a result there were frequent breaks in that portion of the pipe which passed beneath it. Such a break occurred during the month of November, 1904, and was the cause of a considerable wastage of water passing through the pipe. The defendant, Paulsness, who was a plumber, holding a license from the city of Grand Forks for that purpose, was notified of this break in the pipe and authorized to take steps for its repair. In order that he might do this, it was necessary to either entirely shut off the water beyond the end of the main in De Mers avenue near the west end of the bridge or to provide other means of conveying it from that point to a point beyond the break in the service pipe to East Grand Forks. This connection was finally made by inserting into the main under the western approach to the bridge a one-inch pipe, leading this pipe up through a manhole in De Mers avenue above the end of the main, and thence over the surface of the street to the side where it passed down the river bank and connected with the service pipe at a point east of where the break had occurred. Employes of Paulsness, under the direction of the superintendent of the waterworks of the city of Grand Forks, placed this pipe upon the surface of the street in the manner described and in order to protect it from injury and from being shifted from side to side by the passing of loaded wagons, placed on either side of it a two-inch plank, which planks were securely spiked down to the cedar block pavement of the street. After that time, at a date which is not shown by the record, some person or persons whose identity and purpose are not disclosed, placed some manure — 298 — over the planks and the pipe, filling the crevice between and the space at the side, and covering partially tlie top of the planks. There was also placed above the water pipe upon the manure, at a date that the record shows obscurely, except that it was probably four or five days prior to December 17, 1904, a plank which was not attached either to the other planks already there or to . the cedar block pavement of the street. Neither the manure nor the loose plank was a part of the original pipe guard placed there by the defendant, Paulsness. Pie did not know of the presence of the loose or “fugitive” plank, and it seems to be conceded that there was no useful purpose in connection with the pipe guard that was or could be served'by this plank. The footway upon the bridge from Grand Forks to East Grand Forks did not at this time align with the sidewalk on the north side of De Mers avenue, and it was necessary for pedestrians passing from the bridge to this sidewalk to walk over the pavement of the street for a short distance from the west end of the bridge, and to pass across the pipe that in December, 1904, lay on the surface of the street at this point. On the evening of December 17, 1904, one Allman came over the' bridge' from East Grand Forks and was proceeding over the paved street at its west end to the sidewalk on the north side of De Mers avenue. At that time the pipe extended from the manhole over the surface of the street, across the footway, the two two-inch planks were fastened down on either side of it, the manure was spread over the top of the planks and the loose.or “fugitive” plank was lying on top of the manure. As Allman attempted to step over the loose plank, it was raised five or ten inches from the ground by other pedestrians stepping upon the other end of it, and he caught his foot under the plank and was thrown violently upon the pavement, receiving serious injuries. He presented a claim for damages to the city council of Grand Forks alleging'that' his injuries had resulted from the negligence of the city in providing for the safety of its streets, and his claims being refused, brought áction in the circuit court of the United States for the District of North Dakota, against the.city of Grand Forks, based upon this claim. On November 13, 1905, one day before the opening of the term of the circuit court of the United States, at which the case brought by Allman would be tried, the city attorney of Grand Forks prepared and served upon the defendant, Paulsness, a notice to which was attached a copy of — 299 — the complaint and the answer of the city, in which it was stated, among other things, that “the condition complained of is attributable to and was created by you and your servants and you are hereby notified that the City of Grand Forks holds you responsible therefor, and to indemnify the city of Grand Forks from any and all damages, detriment, costs or expenses it has been or will be put to by reason of said litigation.” On November 23, 1905, the case came on to trial in the circuit court of the United States before a jury, and evidence was introduced both ou behalf of the plaintiff, Allman, and of the defendant, city of Grand Forks. The facts shown by the evidence taken are substantially as hereinbefore narrated. The defendant, Paulsness, was a witness; but neither from his own testimony, nor from that of any of the witnesses examined upon the trial does it appear that he placed or was responsible for the placing of the loose plank by which Allman was injured, upon the street, or that he knew it was 'there adjacent to the planks fastened to the pavement as a guard to the water pipe. The court, at the close of the trial, instructed the jury in substance that whether or not the city of Grand Forks placed or authorized the placing of the loose or fugitive plank upon the street, if it appeared that the plank had been there and its presence rendered the street at that point unsafe, for such period of time that the city by the exercise of reasonable care in the supervision of its streets would have known of it and did not remove it, the city was liable for such damage as plaintiff had sustained. The court submitted to the jury four special findings, which with the answers thereto returned by the jury, are as follows: “(1) Flow many planks were used in the structure in question when it was put down on November 2-4, 1904? Ans. Two. (2) Were such planks spiked down to the pavement? Ans. Spiked down. (3) Was the plank which tripped the plaintiff one that was laid November 24, 1904, or one that was subsequently laid? Ans. Subsequent. (4) If you find in answer to question 3 that the plank which tripped plaintiff was placed subsequently to November 24, 1904, for what time previous to the accident had it been continuously at the point of the accident? Ans. We don’t know.” The jury also returned a general verdict in favor of the plaintiff for $850, for which sum, together with the costs of the action, a judgment was thereupon rendered and entered in Allman’s favor. An appeal from this judgment was talc300 en by the city of Grand Forks to the United States circuit court of appeals for the eighth circuit, which on April 27,1907, affirmed the judgment of the circuit court. City of Grand Forks v. Allman, 153 Fed. 532, 83 C. C. A. 554. Thereafter the city of Grand Forks brought this action against the defendañt, Paulsness, alleging as its cause of action that defendant wrongfully obstructed De Mers avenue, at a point near the westerly end of the bridge across the Red River of the North by placing upon and across the traveled portion of this street, “an obstruction consisting of a certain water pipe, certain planks, and certain manure and negligently permitted such obstruction to remain in and upon said trav-. eled portion of said street from on or about November 26, 1904, to January 1, 1905.” The complaint further alleges the bringing of the action by Allman in the circuit court of the United States and the recovery by him of a judgment, including damages and costs, amounting to $1,028.60, for damages sustained by him by reason of defendant’s negligence during the period the street was so obstructed by him, .which judgment was appealed to the United State circuit court of appeals at an expense of the further sum of $400, and by said court affirmed; that defendant was duly notified of the bringing of said action and that he might appear and defend the same; and that the city would look to him for reimbursement in the event of a recovery by Allman; that the city had paid the judgment recovered by Allman and by reason of the premises alleged now looks to the defendant, Paulsness, for reimbursement, and asks that said defendant be held liable to the plaintiff for the sum of money so expended. This action, being the one in which this appeal is taken, came on for trial before the district court of the First judicial district of North Dakota on March 5, 1908, and, at the conclusion of the evidenced introduced by both parties showing facts substantially as hereinbefore narrated, the plaintiff moved the court to instruct the jury to return a verdict in its favor upon the ground that “the case conclusively establishes the legal liability of the defendant.” The defendant also moved that the jury be directed to return a verdict in his favor upon the ground (1) that the evidence failed to show that a demand was made upon the defendant to defend the suit brought by Allman, and a reasonable time allowed him by such notice to prepare for and make such defense; and (2) that it did not appear that under the facts. shown, the structure placed — 301 — by defendant Paulsness upon the street was dangerous or out of repair or that there was any duty on the part of Paulsness to remove the obstruction which caused the injury. The court denied the motion of defendant and granted the motion of plaintiff and under its direction a verdict in plaintiff’s favor was rendered by the jury. Thereafter, in denying a motion for a new trial made by plan-tiff upon (the ground, among others, of the insufficiency of 'the evidence to justify the verdict, and that the verdict is against the law, the learned trial court filed a memoranda of its reasons, in which it is stated: “At the tidal of the present action I followed the ruling of the Supreme Court of the United States in Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 16 Sup. Ct. 564, 40 L. Ed. 712, in directing a verdict for the plaintiff. It seems to me that the principles announced in the case just cited control the case at bar. * * * The very gist of the original cause of action was the structure or pipe guard which the defendant admits he constructed, but which was subsequently changed by some unknown person by adding' the loose plank. It follows, therefore, that the Judgment against the plaintiff obtained in the original action ‘conclusively established a fact from which as the duty’ to keep the pipe guard in the street safe rested on Paulsness, his ‘negligence results.’ ” I cannot see that there is any difference in principle between the case at bar, where the original construction was safe and was rendered unsafe by adding something to it, to-wit: A loose plank, and the Washington Gas Light Company Case, where the original construction which was safe was rendered unsafe by removing something from it, to-wit: the cover of the gas box. If, instead of removing the cover and leaving the gas box open, in the case cited, a cap six or ten inches high had been attached to the box and Mrs. Parker had been injured by tripping over the cap, and recovered judgment against the District of Columbia for the injury, would the gas company have been any the less liable? Clearly not. Appellant in this court urges as a ground for reversal of the judgment of the district court, that it was error to grant plaintiff’s motion and to refuse to grant defendant’s motion for a directed verdict, and that if a verdict should not have been directed for the defendant, then the disputed questions of fact with reference to his liability should have been submitted to the jury. A proper — 302 — determination of the points presented by this appeal requires that we should consider whether or not, upon the evidence introduced, the plaintiff has shown the necessary elements of a cause of action against Paulsness; and, if so, whether or not upon such showing, as a matter of law, the plaintiff is entitled to recover. The substance of all assignments upon this appeal may be said to be included in these points. It is well settled that a municipal corporation which under a liability resulting from a failure to keep safe its streets for the passage of persons and property, and to abate therefrom all nuisances and remove all obstructions that might prove dangerous, is required to pay damages to a person injured on the streets, has, unless it is also a wrongdoer, a remedy over against the party that is in fault and has so used the streets to produce an injury'. Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 16 Sup. Ct. 564, 40 L. Ed 712; City of Rochester v. Montgomery, 72 N. Y. 65; City of Wabasha v. Southworth, 54 Minn. 79, 55 N. W. 818, and Chicago v. Robbins, 67 U S. (2 Black) 418-429, 17 L. Ed. 298. Such right of action proceeds upon the principle that in the case of joint tortfeasors iñ which the parties are not equally culpable, the principal may be held responsible to his codelinquent for damages incurred by their joint offense. A party who for his own benefit or convenience or under license from a city is permitted to place upon a public street a structure which from its nature- or from a failure to guard it, or keep it in repair is or may become dangerous, is held to be under an implied contract with the city that in so doing he will exercise ordinary care to protect the public from danger and the city from loss; so that, in case of injury to one using the street and consequent loss to the city resulting from such structure or the manner in which it is kept, the city may be regarded as in nominal fault only while the party who rendered the street unsafe will be held to be the real wrongdoer and an indemnitor of the city against loss. Chicago v. Robbins, supra; Village of Port Jervis v. Bank, 96 N. Y. 550. The defendant, Paulsness, vigorously contends that the one-inch pipe was laid from the manhole to the side of the street and the two planks placed on either side of it not by him or under his direction but by the city whose superintendent of waterworks interfered at a time when his workmen were about to proceed to repair the pipe by another method which would not have caused — 303 — any obstruction whatever of. the street; and that he was not responsible for any obstruction to or unsafe condition of the street caused thereby. In our view of the case, however, this point has no materiality. If it appeared that the injury to Allman and the consequent liability of the city had resulted directly from the laying of the pipe or the placing of the two planks beside it as a guard, this question would be one of controlling importance and on its determination would depend the liability of Paulsness. It appears, however, that the cause of the injury was neither the pipe nor the planks placed beside it as a guard, but a third plank which drifted there through some agency not accounted for and remained for several days without permanent attachment either to the pavement or the structure guarding the water pipe. In this state of fact, we believe that the point decisive of the case will be reached more speedily and determined more clearly by assuming in accordance with the contention of the plaintiff that whether or not the pipe was placed on the surface of the street and the two planks placed beside it as a guard by Paulsness or under his direction, he had by his acquiescense and subsequent conduct adopted both this method of conveying water beyond the break and the structure necessary to protect it and was liable for any damages which resulted from a failure to use ordinary care to keep such structure reasonably safe. We will also assume, without deciding, that the notice served by the city upon the defendant prior to the trial of the action brought by Allman was sufficient in substance and in time .of service to enable him to prepare a defense to and to defend the action had he desired to do so. On a state of facts such as is here assumed, the plaintiff contends, and the trial court seems to have held, that the judgment in favor of Allman conclusively established as a fact that it was the duty of Paulsness to keep safe the water pipe with the two planks guarding it upon the street, and that his failure to do so resulted in the injury to Allman and consequent loss to the city. So far as the duty of Paulsness is concerned, this contention will be regarded as correct, and if it can be truly said that the evidence taken in this case conclusively shows, or that the rendition of the judgment in Allman’s favor necessarily included, a finding that the injury was caused by a failure to keep safe the water pipe laid in the street or the structure guarding it, there is little question but that Paulsness is liable as an indemnitor to the city. It appears, — 304 — however, from the evidence taken and from an express finding of the jury, on whose verdict the judgment was rendered, and in fact seems to be. conceded on all hands, that the injury to Allman did not proceed from any danger inherent in the pipe or the planks guarding, it or from any failure of Paulsness to properly maintain the structure or keep it in repair, but, as before stated, from a loose plank, not a part pf the original structure, subsequently placed on the street without his knowledge or authority. Appellant, if liable as an indemnitor of the city, and if given notice of an opportunity to defend against the judgment obtained by Allman, is concluded as to all matters necessary to establish a liability from the city to Allman and as to any matter which might have been urged as a defense by the city against such liability. City of Rochester v. Montgomery, supra. It cannot be said, however, that the liability of Paulsness is coextensive with that of the city. The city was liable for a failure to use ordinary care to keep its streets safe, whether the obstruction which rendered it dangerous was placed there by the city itself, by Paulsness, or by some other party. Paulsness was liable only in case the injury was produced by an obstruction which he had placed upon the street and failed to use reasonable care to keep in safe condition. Notwithstanding the payment by the city of a judgment resulting from the injury to Allman, and all legal conclusions arising out of the trial of the action brought by him, Paulsness was not “estopped from showing that he was under no obligation to keep the street in a safe condition and that it was not through his fault that the accident happened.” City of Chicago v. Robbins, supra. Any liability of Paulsness in this action, therefore, “is predicated upon the negligent character of the act which caused the injury and the general principle of law which makes a party responsible for the consequences pf his own wrongful conduct.” Village of Port Jervis v. Bank, 96 N. Y. 550. His relation to the city and his conduct with reference to the obstruction of the street which caused the injury will be measured by the rules of the law of negligence. Whether or not the proximate cause of the injury to Allman was a failure of defendant to perform a legal duty or arose through his fault, in this as in other cases charging negligence, is a question of law for the court, to be determined upon the material facts — 305 — with such inferences as may be properly drawn therefrom. Glassey v. St. Ry. Co., 185 Mass. 315, 70 N. E. 199. Assuming, therefore, that Paulsness was responsible for placing the water pipe across the street and the two planks, one on either side, for the purpose of guarding it, did the placing of such obstruction or the failure on the part of Paulsness to exercise ordinary care to protect the public from damage, result directly and proximately in the injury to Allman? The trial court held that a liability of Paulsness follows when the fact is established that he constructed the original pipe guard upon the principle, evidently, that having created an obstruction in the street it was his duty to prevent or remove any additions thereto by persons known or, unknown which rendered it unsafe. It is true that defendant, having placed the original structure in the street, would be held to exercise a certain supervision over it for the purpose of keeping it in safe condition; and if at the time he placed it there he had cause to reasonably anticipate that, from the nature of the structure itself or from the use for which it was intended in the ordinary course of human events, additions would be placed thereon which might render it unsafe and dangerous, this supervision must extend to such additions. But unless the additions to or changes in the original structure are such as a prudent man in the exercise of ordinary care may be held to have had in anticipation, he is not liable for a failure to discover or remove them. Glassey v. Street Ry. Co., supra; Kumba v. Gilham, 103 Wis. 312, 79 N. W. 325; Leeds v. Telephone Co., 178 N. Y. 118, 70 N. E. 219; Cuff v. Railway Co., 35 N. J. Law, 17, 10 Am. Rep. 205. In our view, the facts under which the plaintiff here claims to hold Paulsness liable are quite different, in legal effect, from those announced in the case of Washington Gas Light Company v. District of Columbia, referred to in the memoranda of the district court. In that case the Gas Company who, for its own benefit and convenience, placed an iron box in the sidewalk, would be held to know that such a construction in the course of years, by ordinary usage, wear and deterioration from the elements, would probably lose its cover and through this or other substantial losses become dangerous. Knowing this it was held liable for failure to anticipate and to repair such loss. On the other hand, however, the Gas Company could not be said to have in reasonable anticipation at the time it placed the box there that some unauthorized person — 306 — ■ would permanently attach to this cover an additional cap six or ten inches high as conjectured by the trial court, unless the original cap itself was constructed in such a way as to induce or invite such addition and to raise a reasonable expectation that it would be placed there. The original structure placed by Paulsness was safe at all times before and after the injury to Allman. If one of the two planks guarding the pipe had in the course of time become loose so that it tipped or moved about in such manner as to cause the injury, it is clear that such condition might have been reasonably anticipated by Paulsness and that he would be liable. To hold, however, that in placing the original structure there he must have had reasonably in anticipation that it would be interfered with by some other person who would place manure on top of the planks and the pipe and a loose plank on top of the manure in such a position that pedestrians by stepping on ene end would raise the other so as to render it dangerous to persons using the street at the point, requires, as we view it, an unreasonable assumption that the facts of the case will not sustain. Paulsness insists that the sole purpose of placing on the street the two planks permanently attached to the pavement was to guard the pipe from injury or displacement; that the structure so made did not contemplate the use of manure or of a third plank for carrying out the purposes for which it was intended; that the manure placed on top of the pipe and the loose plank placed on top of the manure did not in any manner protect the pipe and that the presence of these additions did not make the structure more safe but on the contrary presented in itself a dangerous obstruction for 'which he was in no way responsible. This contention, in the light of the entire evidence, seems well founded and reasonable. If the city placed the manure or loose plank there in carrying out some plan connected with the supervision of the streets, Paulsness would not be at liberty to remove it If some third party placed it there he and not Paulsness would be responsible for any injury caused by its making the street unsafe. If, for instance, an electric light company in constructing or repairing its line along the street had placed some of its apparatus upon this structure laid there by Paulsness, and a person using the street had been injured by coming in contact with the apparatus, it is apparent at a glance that the electric light company and not Paulsness would have been liable — 307 — for the resulting damage. If a contractor engaged in the construction of a building near at hand, had piled bricks or other building material on -the structure and Allman had fallen over this instead of the loose plank it is equally clear that the contractor and not Paulsness would be liable. And yet, on what theory can it be said that the placing of the manure and the third plank on the original structure could have been more naturally or directely in the contemplation of Paulsness than the laying there of electric apparatus or building material ? (123 N. W. 878.) Assuming to exist, therefore, all facts necessary to establish a liability of the city of Grand Forks to Allman, we are of the opinion that these facts, together with the additional showing made upon the trial of this case, are insufficient to establish a liability against Paulsness. Neither the facts nor any reasonable inferences that can be drawn from them show that it was the duty of Paulsness to remove from the 'Street the obstruction which caused the injury, or that he failed to keep in safe condition the structure placed there by him. In other words, a cause of action in negligence is not shown against Paulsness in that it does not appear that any breach of duty or lack of care on his part was the direct and proximate cause of the injury to Allman. Failing in this, the city fails to show that Paulsness was the real party in fault and cannot hold him as an indemnitor for the loss occasioned by payment of the judgment to Allman. The motion of defendant made at the close of the entire testimony that a verdict be directed in his favor should have been granted. The judgment of the district court is reversed, and it is directed to dismiss the action. All concur, except Morgan, C. J., who did not participate. Note — As ,to liability of cities for defective streets and obstructions thereon, see note by Judge Cochrane to Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427. On sufficiency of presentation of claim to city council, see Coleman v. Fargo, 8 N. D. 69, 76 N. W. 1051. Sufficiency of notice to city council of claim for damage, is question of law for the court. Trost v. Casselton, 8 N. D. 534, 79 N. W. 1071. Such notice is mandatory. Id. Bicycles, in the absence of ordinance prohibiting it, may be lawfully ridden on sidewalk. Gagnier v. Fargo, 11 N. D. 73, 88 N. W. 1030. City is liable for injuries ,to a bicycle rider if sidewalk is not in a reasonably safe condition. Id. City’s duty is fulfilled if sidewalk is in a reasonably safe condition for pedestrians. Id. Claimant for damages against city may present his claim to city auditor with the request that he present — 308 — it to the council. Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 174. Notice of claim for damages against a city is sufficient where it describes locality of accident as 30 feet from a point, when in fact it is only 25 feet. Johnson v. Fargo, 15 N. D. 525, 108 N. W. 243. Whether a wire at certain distance from sidewalk, is an obstruction is a question for the jury. Id.