Anderson v. City of Jamestown

(hntiSTJANSON, J. The plaintiff, while walking along the sidewalk on one of the streets in the city of Jamestown in this state, stopped into a depression in the sidewalk and as a result fell and sustained severe injuries. She brought this action to recover the damages sustained by such fall and was awarded a verdict in the sum of $2,587. Subsequently, on defendant’s motion for judgment notwithstanding the verdict or for a new trial, the trial court ordered judgment notwithstanding the verdict in favor of the defendant for a dismissal of the action. Judgment was entered accordingly and the plaintiff has appealed. The sole question presented on this, appeal is whether there was any substantial evidence tending to show actionable negligence on the; part of the defendant. After careful consideration we have reached the [535] conclusion that there was substantial evidence in support of the findings of the jury and that the trial court- erred in setting aside the verdict and ordering judgment notwithstanding the verdict. The question of negligence is primarily and generally one of fact for the jury. It becomes one of law only when but one conclusion can reasonably be drawn from the undisputed fads. Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359. The accident involved in this action occurred on October 7th, 1922, at about 8 o’clock in the evening of that day. The plaintiff and her daughter and one Mrs. Oarley were walking together on t-he sidewalk on the west side of 6th Avenue in the city of Jamestown and were going toward the main or business section of the city. At a' certain point on said sidewalk the plaintiff stepped into a hole or depression and as a result thereof she fell and injured her foot, ankle and leg, and fractured a bone in her arm. The cause of her injuries and the extent thereof are not in controversy. It is undisputed that there existed a certain depression or hole in the sidewalk; that the plaintiff stepped into it, fell upon the sidewalk and sustained severe injuries. The sidewalk was constructed of concrete and the witnesses testified that fix' hole had been caused by the breaking away and disintegration of the concrete; that there was no difference in color between the hole and the remainder of the sidewalk. The defect in the sidewalk had been there during all of the summer of 1922 and there is some evidence to the* effect that it had been there for three or four years in all. According to the evidence of the witnesses for the plaintiff, the hole at the time of the accident was some 8 or If indies wide, about 32 inches in length and varied in depth from 1 to 3 inches. The evidence is further to the effect that while there was an electric street light not far distant, the light was so placed that a certain telephone pole and a tree cast a shadow on that part of the sidewalk where the hole was. There' was also evidence that other persons had stumbled on prior occasions as a result of stepping into the hole or depression in the sidewalk. Evidence was also introduced, without objection, that after the accident, the owner of the adjacent property, at the order of the mayor of the city, filled the depression with sand, and that he used for that purpose a twelve quart bucket full of sand. The. rules relating to the liability of a city for personal injuries [536] sustained on account of defects in sidewalks are well settled in this state. There is a duty incumbent upon the city to exercise reasonable care to make and maintain its streets and walks reasonably safe for the purposes to which they are respectively devoted, and for the use of persons traveling thereon in the usual modes, by day or by night, and who are themselves in the exercise of reasonable care. Ludlow v. Fargo, 3 N. D. 485, 57 N. W. 506; Jackson v. Grand Forks, 24 N. D. 601, 45 L.R.A.(N.S.) 75, 140 N. W. 718; 28 Cyc. 1359. And after the city has received notice of the existence of a defect, an obligation arises to exercise reasonable care to restore the street or sidewalk so that it may again be reasonably safe for travel. 28 Cyc. 1360. However, there is, in this state, no liability for injuries sustained by reason of accumulations of snow and ice upon a sidewalk unless actual knowledge of the defective, unsafe or dangerous condition of such sidewalk or cross-walk was possessed by the mayor, board of city commissioners, police officers or marshal, forty-eight hours previous to such damage or injury; and actual knowledge of the condition can in no ease be presumed from the fact of the existence of the condition, but such knowledge must in all cases be proven as an independent fact. Laws 1915, chap. 70; Malherek v. Fargo, 49 N. D. 522, 191 N. W. 951. But, as regards other defects, actual knowledge on the part of the city is not necessary. In other words, as regards such defects the liability of the city remains precisely the same as before the enactment of chapter 70, Laws of 1915 ; and as to such defect, notice may be either actual or constructive. Jackson v. Grand Forks, 24 N. D. 601, 620, 45 L.R.A.(N.S.) 75, 140 N. W. 718. Constructive notice means notice which the law imputes from the circumstances of the case; and a municipality is chargeable with notice of such defects as ordinary and reasonable diligence would have discovered; or, stated in another way, if facts exist with which ignorance is not compatible, except on the assumption of failure to exercise reasonable care, notice will be presumed. 6 McQuillin, Mun. Corp. § 2813. The circumstances of each case, must determine whether constructive notice of the defect is to be attributed to the municipality, and hence constructive notice is ordinarily a question of fact for the jury. Decatur v. Besten, 169 Ill. 340, 48 N. E. 186. If a defect has existed for such a length of time that the municipality in the exercise [537] of ordinary care ought to have discovered and remedied it, notice of the defect will be imputed to the municipality. 6 McQuillin, Mun. Corp. § 2814. The hole in the sidewalk which caused plaintiff to fall had existed for a long time, and was plainly visible to all who passed that way. The sidewalk was in general use by the people residing in that vicinity in going to and coming from the so-called “business portion” of the city. There was also some evidence tending to show that a municipal officer chargeable with thp duty of maintaining sidewalks had passed over the sidewalk in controversy while the defect in question existed and a long time before the accident occurred. It is true,, a city is not an insurer of those who travel upon its streets and it is not required to keep the streets in such a condition as to insure the safety of travelers under all circumstances. .Is already stated, however, there is a duty incumbent upon the city to exercise reasonable care to keep its sidewalks reasonably safe for the purpose to which they are devoted. In the case at bar tbe questions of fact wore submitted to the jury under instructions eminently fair to the defendant. The jury found in favor of the plaintiff. And, under the evidence in this case, we do not believe it can be said, as a matter of law, that the verdict of the jury is without substantial support in the evidence. When reasonable men may differ as to whether the condition of the sidewalk was such as to call on the city officials to anticipate accidents, the question is one •for the jury. Beltz v. Yonkers, 148 N. Y. 67, 42 N. E. 401. It seems to us that this is such a case. Here, it is admitted that an accident happened and there is no suggestion of contributory negligence on the part of the plaintiff. It is undisputed that the hole in the sidewalk was the direct and proximate cause of the injuries sustained by the plaintiff, and that this hole had existed for a long period of time. In view of all the facts and circumstances in the case, we are of the opinion that it was for the jury to decide whether the defect in the sidewalk was such as to impose upon the city authorities a duty to repair it (6 McQuillin, Mun. Corp. p. 5686, and authorities cited) and also whether the city authorities had had notice of the defect for a sufficient length of time to charge the city with a breach of duty in failing to repair the defect and make the sidewalk reasonably safe for its intended use. 6 McQuillin, Mun. Corp. § 2814. [538] Tlie judgment appealed from is reversed and the district court is directed to enter judgment pursuant to the verdict. It is so ordered. Bronson, (Jh. J., and Johnson, Bibdzejll, and Nujsssle, JM., concur.