Graham v. City of Albert Lea

Collins, J. This was an action brought to recover for personal injuries received in the year 1880 in front of what is called the Morin block or tract of land, on the southerly side of Clark street, in the city of Albert Lea. On the east of this block is Adams street, on the west is Grove, both crossing Clark at right angles, about 300 feet apart. The street last mentioned was brought to grade by the street-commissioner in 1886, the cut at the point in question being several feet in depth, and at the same time a plank walk was laid upon its northerly side. Since then it has been one of the main thoroughfares of the city. No plank walk was laid in front of the Morin property, but its owner, Mr. Morin, who was then an alderman, and as such had charge of the grading, employed the street commissioner to plow a few furrows on top of the bank, so that it might be terraced down, and a more convenient way made for pedestrians. Morin then, at his own expense, cut down and leveled off a walk about eight feet wide, surfaced it with gravel, and, with a slope at each end, brought it down to conform with the grade of the three streets before mentioned. The city then constructed cross walks over Adams street from the east end, and over Clark from the west end, of the walk so built by Morin, so that it was given the appearance of a continuous way or walk for foot passengers, and it was so used for more than four years before plaintiff was injured. His injuries, inflicted in the nighttime, were caused by stepping into a hole which had first been made by heavy rains, at a point where the walk wras about seven feet-above the street surface. The principal contention of the appellant [205] city is that the testimony failed to establish the existence of a sidewalk in front of the Morin property, or, if there was such a walk, that it was not one for the repair or maintenance of which it was responsible in any degree. The nature of the way has been partly described. From Adams street, going westerly, the ascent was gradual towards the center of the block to the highest point, and thence the descent was easy to Grove street. The surface was leveled off to a width of some eight feet, and covered with gravel, that it might be walked upon with less difficulty. Above it, from one to three feet, was the surface of the abutting premises used by Mr. Morin for residence purposes. At each end of this open way he had caused it to be brought down gradually to the street grades, and over the streets on each side cross walks of plank bad been put in by the authorities so as to connect the graveled walk with plank sidewalks built by order of the city council, thus giving to it the appearance of being a part of the system. In this manner the public had been invited and induced to use, and for more than four years prior to the accident which befell the respondent had used, this place as a public thoroughfare, as a sidewalk. This word “sidewalk,” as used in this country, does not mean a walk or way constructed of any particular kind of material, or in any spe. cial manner, but ordinarily it is used for the purpose of designating that part of the street of a municipality which has been set apart and is used for pedestrians, as distinguished from that portion set apart and used for animals and vehicles. The right to regulate the width, materials, and construction of all sidewalks within the city limits was conferred upon the council by the charter, and with this provision came the right to accept and adopt a walk made of earth. It could make no possible difference to the public, nor could it affect the rights of individuals, that materials more generally used did not enter into its construction. The city authorities so acted in reference to this walk as to hold it out to the people as a public thoroughfare, and therefore assumed the duty of keeping it in repair. It was placed in the street to be used by the public as a part of it, and thereupon it became incumbent upon the corporation permitting it to remain, and to be so used, to see that it was in a safe condition for such use. The case, on this feature, is not essentially different from Estelle [206] v. Village of Lake Crystal, 27 Minn. 243, (6 N. W. Rep. 775.) And as to the general proposition that where a municipality permits a. private citizen to build a sidewalk in front of his premises, and the same to be used by the public, the duty devolves upon the corporation to see that it is kept in proper repair. See City of Champaign v. McInnis, 26 Ill. App. 338; Weare v. Fitchburg, 110 Mass. 334; Saulsbury v. Village of Ithaca, 94 N. Y. 27; Potter v. Castleton, 53 Vt. 435; Foxworthy v. City of Hastings, 25 Neb. 133, (41 N. W. Rep. 132;) Orme v. Richmond, 79 Va. 86. The rule of law laid down in the cases above cited has not been seriously questioned by appellant, but ii urges that no liability to plaintiff exists because of that portion of its charter which provides that actions shall not be maintained against it on account of injuries received in consequence of “any insufficiency on the ground where the sidewalks are usually constructed, where no sidewalk is built.” This language is not very lucid, but, from what has been stated, it is evident that the facts to which the-same might be applied are not now before us; for it was established upon the trial of this action that a way of proper width, and of material which served the purpose, had been built for sidewalk uses; that the city authorities had recognized its proposed use by connecting it with other sidewalks; and that with their knowledge it had been more or less used as a sidewalk by footmen having occasion to go that way for a number of years. It is further urged that plaintiff should not. be allowed to recover because guilty of contributory negligence, and also because the walk at the place where he was hurt was shown to-be more than four feet wide outside and independently of that part which had been washed away. There was no testimony on which could be founded the assertion that plaintiff contributed to defendant’s negligence when it failed to seasonably repair the walk in question; and in reference to the other point, in addition to the suggestion that the argument of counsel is based upon the assumption that the ordinance prescribed the width of walks upon Clark street at not. more than four feet, when, in fact, it was ordained that sidewalks-upon that particular street should not be less than four feet wide, it may be said that it would be very remarkable if the duty of municipal corporations as to its sidewalks could be discharged by proper [207] care and diligence with respect to a part lengthwise, leaving the remainder wholly uncared for and unrepaired. We do not think that the assignments of error numbered from four (4) to eight (8) inclusive, and those relating to the rulings-of the court when receiving the-plaintiff’s proofs, need to be discussed. There was no prejudicial error in any of the rulings. The fifth (5) assignment of error goes, to appellant’s claim that the verdict against it was excessive in-amount. We are of the opinion that it was large, but cannot say that it was not justified by the testimony of the medical men who-were sworn in his behalf. Order affirmed. (Opinion published 50 N. W. Rep. 1108.)