McDonald v. City of St. Paul

START, O. J. The plaintiff, on the e vening of December 2, 1899, while attempting to cross the street diagonally at the southwest corner of Marshall and Dewey avenues in the city of St. Paul, was thrown to the ground by a wire stretched along the boulevard at the street corner, whereby she was injured. She brought this action to recover damages for personal injuries so sustained on the ground that the city was negligent in permitting the wire to be in the street. "Verdict for the plaintiff for $250. The defendant moved for judgment in its favor notwithstanding the verdict, which was denied, and it. appealed from the judgment entered upon the verdict. The undisputed facts in this case, briefly stated, are these: Marshall avenue runs east and west, and is one hundred feet wide, and is crossed at right angles by Dewey avenue, sixty-six feet wide. The central fifty-two feet of Marshall avenue are graded and prepared for a roadway. Through the center of this roadway two street-car tracks are maintained and used for passenger traffic. ' On either side of this roadway are boulevards eighteen feet wide, and outside them are plank sidewalks six feet wide. On the dividing lines between the roadway and the boulevards are stone curbs. The boulevards are graded on a level with the sidewalks and the top of the curb. Crass and shade trees are growing on the boulevards. On Dewey avenue the boulevards are eleven feet wide. There is a walk across Marshall avenue on the west line of Dewey avenue, and the sidewalk on the south side of Marshall west of Dewey continues across the boulevard and into the roadway of Dewey avenue. At the intersection of Marshall and Dewey, and between the crosswalks and the curb, at the southwest corner, is an oblong portion of boulevard eleven by eighteen feet. On November 18 — two weeks before the accident — the owner of the adjoining property set out a tree near the center of the oblong tract. To support the tree, a small wire was wound [314] around the tree about four or four and one-half feet from the ground, and fastened, one end thereof, to a stake driven into the ground at a point twenty-two inches north of the crosswalk leading to Dewey avenue, and three feet and two inches inside the curb, and the other end thereof to a stake driven into the ground at appoint about seven feet three inches north from the tree, and about five feet and five inches from the crosswalk leading across Marshall avenue. The tops of the stakes were driven nearly level with the surface of the ground. The stakes and wire could readily be seen by daylight, but not at night. The plaintiff, on the evening in question, and after dark, was walking rapidly (as she was afraid she would miss a car) on the sidewalk on the south side of Marshall avenue for the purpose of taking the car which was to stop on the east side of Dewey avenue. When she reached the corner, she attempted to “cut across” — that is, to cross diagonally — the oblong portion of the boulevard we have described, and in so doing she was caught by the wire, and thrown down and injured. While she could not see the wire, she observed the tree, and the surface of the ground, which appeared to be free from obstructions. The evidence as to the locus in quo indicates that pedestrians who were in a hurry, and knowing nothing about the wire, would be quite apt to “cut across the corner.” The side and crosswalks were in a condition of safety, and the plaintiff would not have been injured if she had kept thereon. The place of the accident was in the residence district of the city, but it was about five-miles from the center of the city, and was somewhat sparsely populated. A mounted policeman, however, patrolled the district for twenty-two hours each day, passing the corner in question frequently. It was his duty to report to his chief any defects in the streets or sidewalks discovered by him. The defendant requested the trial court to direct a verdict in its favor on the ground that, as a matter of law, upon the undisputed evidence, the defendant was not guilty of any negligence in the premises, but the plaintiff was guilty of negligence which was the proximate cause of the accident. This was refused by the court,, and the ruling is here assigned as error. [315] The main question to be here considered is whether, upon the special facts of this case, the alleged negligence of the defendant was a question of law or fact. The contention of the defendant is that when, as in this case, a municipality sets apart, marks out by curbing or otherwise, and improves a portion of a street as a boulevard, it is notice to the public that such part of the street is not intended for travel, and that any person who, without any necessity, and solely for his own convenience, uses it instead of the sidewalk, assumes all risk of injuries from obstructions thereon; or, in other words, that the city, when it has so withdrawn and improved a part of the street, is not bound to maintain it in a condition of safety for pedestrians who leave the safe sidewalk, and go upon the boulevard. The plaintiff, on the other hand, claims, as we understand her counsel, that when a city improves a street to its full width pedestrians have a right to travel on any part , of the street, including the boulevard, without any necessity for so doing, and that the city is bound to exercise due care to keep all parts of the street relatively safe for public travel. The right of a municipality to determine within reasonable limits what part of a street in a residence district shall be set apart for the roadway for travel of all kinds, what part for sidewalks for exclusive use of pedestrians, and what part for boulevards with grass, trees, and flowers planted thereon, is now undoubted. There are adjudged eases, decided in the early history of municipalities, when the stern taste and asceticism of the times could see no other use for a public street than a means of getting from one place to another, which are not in harmony with the rule we have stated. But in this state streets are laid out or dedicated for many purposes other than the accommodation of public travel in the ordinary way. They are intended for the purpose of furnishing light and air, and in the residence districts for boulevarding portions of them, thereby adding to the beauty of the city, and contributing to the health and happiness of its citizens. Of course, the primary purpose of a street is to accommodate public travel, but whenever any portion of a street not used for business purposes can be set apart for park or boulevard [316] purposes without any substantial impairment of such primary purpose, the municipality may set apart such portion for boulevards and other similar public purposes. Having such right, and the marking out and improving of the boulevard being notice to pedestrians that it is not intended for the purposes of travel, it logically follows that the municipality is not bound to use due care to keep such portion of the street free from all obvious obstructions which are necessarily incident to its use as a boulevard, although they may endanger the safety of travelers thereon, even conceding, without so deciding, that a pedestrian, in the absence of a law or ordinance prohibiting it, has the technical legal right to travel wherever he pleases in the street. While this is true, yet the municipality has no right to maintain or permit others to do so, on its boulevards, and especially on those at the street corners, anything in the nature of a dangerous pitfall or trap, or snare, or like obstruction, whereby the traveler, yielding to the impulse of the average person to cut across the corner when in a hurry, may be injured. The trial court in substance so instructed the jury. Now, can it be held, as a matter of law, that the facts in this case do not bring it within this rule? This, in the last analysis of the evidence, is the pivotal question, and we answer it in the negative. It will serve no practical purpose to repeat or discuss the facts, for we are of the opinion that they present a fair question upon which reasonable men might, and probably would, draw different conclusions. If the accident had occurred on the boulevard between the block lines, instead of the one at the street corner, the case would not be so clearly one for the jury. The question of the defendant’s negligence and that of the plaintiff, including the assumption of the risk, was rightly left by the court to the jury. Judgment affirmed. COLLINS, J. If this accident had occurred anywhere upon the boulevard except at thp corner, I am of the opinion that, on the authorities, there could have been no recovery. But, in view of the fact as to the place where plaintiff was tripped, I think the case was for the jury.