Mack v. City of Salem

By the Court, Prim, C. J.: It is admitted by the pleadings in this case that it is the duty of the city of Salem, under its charter, to keep in repair, and in a safe condition for travelers, its streets and side and crosswalks. Despondent having obtained a verdict and judgment in the court below, appellant seeks to reverse said judgment on the ground that the complaint upon which the judgment is based is fatally bad, for the reason that it does not contain a statement of facts sufficient to constitute a cause of action, in this, it contains no allegations that the corpora [278] tion or its officers had any notice of the defect in the side and crosswalk alleged to have caused the injury complained of by respondent. It does not appear from the transcript that the court below was ever directly called upon to pass on the sufficiency of the complaint. A general demurrer was interposed in the court below upon this ground, but was- withdrawn by consent of parties without any action of the court upon it. • Nor does it appear that a motion in arrest of judgment was ever made upon the ground; but appellant specifies this ground of error for the first time in his notice of appeal. And it is urged by counsel for respondent that the defect is waived and cured by verdict. If the complaint contained a cause of action, but defectively stated, the position would be correct and the authorities cited by respondent applicable. But that is not this case. The complaint is bad for the want of a material allegation to show the liability .of the appellant for the injury complained of. By section 70 of the code, “the objection that the complaint does not state facts sufficient to constitute a cause of action” is never waived by failing to demur or answer. (7 Barb. 581.) To maintain an action against a municipal corporation for an injury to the person in consequence of its streets or sidewalks being defective and out of repair, it must be alleged and proved that the corporation or its officers had notice of such defect and want of repair, or at least a state of facts must be shown from which notice may be inferred or implied. Mr. Dillon in commenting on this question says: “ As in such case the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability. For in such cases the corporation is responsible only for reasonable diligence to repair the defect or prevent accidents after the unsafe condition of the street is known or ought to have been known to it or its officers, having authority to act respecting it.” (Dill, on [279] Mun. Corp. 921.) The doctrine that notice to the corporation is essential to fix liability in such cases as the one under consideration, is fully sustained by the following authorities: (Mayor v. Sheffield, 4 Wall. 195; Wrightman v. Corp. of Washington, 1 Black, 53; 24 Wis. 342; 33 Iowa, 397.) The complaint in this case containing no allegations of notice, nor such a statement of facts from which notice might be implied, we think it insufficient to sustain the judgment, and it must therefore be reversed and the cause remanded to the court below for further proceedings. Judgment reversed.