Cleveland v. City of St. Paul

By the Court. McMillan, J. It is not and cannot be disputed that the ditch and embankment made across Third street, the principal thoroughfare of the city of St. Paul, left in the condition it was at the time of the injury complained of, without guard, protection or-light, was a nuisance. The important question seems to be whether the defendant is responsible for its existence, and liable to the plaintiff in this action for the injuries occasioned by it. ■ From the finding of the court it appears that, “this excavation was made by a firm doing business as plumbers in said city of St. Paul, under the name of Leahy & Co., and was made by them for the purpose of furnishing with water a building [285] situate on the corner of Third and Robert streets, and occupied by the Pioneer Printing Company, by running pipes into said building and connecting same with the main pipe of the St. Paul Water Company running along Third street.. Said Leahy & Co. acted under a contract with said printing company, and had authority from said water company to connect with their main pipe as aforesaid. The St. Paul Water Company is a corporation created under the laws of this state, for the purpose of introducing water into the city of St. Paul, and furnishing the same to the inhabitants thereof.” The authority from the water company to Leahy & Co., to connect with their main pipe was not intended by the water company to make Leahy & Co. their agents in making this connection with the main pipe, for it appears as a part of the same finding that Leahy & Co., in making this connection with the main pipe acted under a contract with the Pioneer Printing Company. The authority from the water company was a mere license to Leahy & Co. to use the property of the water company, that is to make this connection with its main pipe. The water company, therefore, was in no way connected with the making of the ditch and embankment, and we are not called upon to consider or determine any questions arising out of the relations of the water company and the city to each other, but are to consider this case entirely irrepective of the rights or liabilities of the water company under its charter. The act incorporating the defendant provides as follows: “ The common council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and grounds within the limits of said city, and shall cause all streets which may have been opened and graded, to be kept open and in repair and free from nuisances.” Charter, ch. 7, § 1. (Sp. L. 1868, p. 87.) [286] Third street at the time oí the accident had been duly opened and graded by said city, and for a number of years has been much used and traveled upon, and more used and traveled upon than any other street or thoroughfare in said city, by citizens of said city and others. There is no doubt that Third street at the time this accident happened came within the provisions of the section of the charter above quoted. What then was the extent of the duty resting upon the city to keep it in repair and free from nuisances? We understand the plaintiff’s attorney to maintain the position that the duty thus imposed is absolute and unconditional ; that any failure to perform it is negligence per se, and renders the corporation liable, whether or not the city had notice of the defects in the highway. We do not think the authority cited by the plaintiff goes to the extent of the position stated. There may be instances in which municipal corporations are by express statute made absolutely liable in damages for all injuries occasioned by any want of repair, or by any obstruction or defect of highways under their supervision and control, but in the absence of such express provision, the general rule, we believe, is that “ a municipal corporation charged with the duty of keeping its streets in repair, and of exercising a general oversight in regard to their condition and safety, is bound to maintain them free from all defects or obstructions which by' the use of ordinary vigilance and care it can detect and remove.” Shearman & Redfield on Neg., § 149; See also Sections 146-148; Mayor of New York, vs. Furze, 3 Hill, 612; Hudson vs. the Mayor &c. of New York; 9 N. Y. 163, and authorities cited-, Mayor vs. Sheffield, 4 Wallace, 189—195. But we are fully satisfied that within this rule, upon the facts appearing in this- case, the defendant is liable in this action. [287] We need not stop to inquire, whether the fact that the day and night police officers were aware of this obstruction in the street, would, under all the circumstances, constitute express or actual notice of the obstruction to the city; however that may be, this, together with the other facts found by the court, show an obstruction in the most prominent thoroughfare of the city, so open, notorious and dangerous, and continued for such length of time, that the city authorities with reasonable diligence might have known its existence in ample time to have secured it with sufficient guards and light to have protected .travelers against it. The city must, therefore, be held to have had, at least, constructive notice of this obstruction in the highway. Shearman & Redfield on Neg., § 148; Hart vs. City of Brooklyn, 36 Barb. 226. Being thus chargeable with notice, it is a matter of no' importance whether we consider Leahy & Co. or the Pioneer Printing Company as having created this obstruction in the street, with the permission of the city, for a lawful purpose, or as having done it as a mere wrongdoer. If either did it with permission of the city, the city was conclusively chargeable with notice, and required to see that it was property secured and protected with guards and light; if either did it as a mere wrongdoer, the facts show constructive notice of the defect or obstruction to the city, in time to have secured it in the same manner, and imposed upon the city the obligation of sufficiently securing and protecting it. Shearman & Red. on Neg., § 147. Having permitted this obstruction to remain during the night without guard, protection or light, whereby the plaintiff without negligence upon his part suffered the injury complained of, the city is liable. Judgment affirmed.