Connor v. Salt Lake City

BARTCH, J. This is an action to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant — 256 — in permitting a portion of a lath, and wire fence to remain upon and obstruct the sidewalk on one of the city’s streets. From the evidence it appears that on the night of January 15, 1902, the plaintiff, while walking upon the sidewalk on the west side of First West street, between Seventh and Eighth South streets, in company with others, came in contact with a portion of a lath and wire fence lying upon the walk, and that, the fence having caught her right foot, she fell down, and sustained the injuries of which she complains. The night was dark, and the place where the accident occurred is in a populous portion of the city. The end of the fence lying upon the sidewalk, it appears,was frozen to the ground, and there is evidence strongly tending to show that the sidewalk had been thus obstructed almost continuously for several months prior to the happening of the accident. At the trial the jury returned a verdict in favor of the plaintiff for the sum of$4,000 damages, and judgment was entered accordingly. To avoid this judgment the defendant appeals to this court, and, among other things, contends that the verdict was not that of a lawful jury, and that the challenge to the panel, made by the defense, ought to have been sustained. The appellant insists that the panel from which the jury was selected was not drawn for the court in which this case was tried; that the panel was drawn for the Third District court generally, without reference to the particular departments presided over by different judges and without reference to the order of any particular judge; and that, therefore, the jurors constituting the panel were not competent to serve in this case. It is further insisted that at the time this jury was being impaneled, eight jurors had been withdrawn from the panel and were serving in the trial of a case in another department of the Third District court; that consequently .those jurors were not available in this case; and that the appellant had a right to' a full panel from which to select the jury herein. As to' the first point here presented — that a panel — 257 — must be drawn for each department or division in districts where two> or more judges preside — appellant relies on sec. 1313, Rev. St. 1898, which reads as follows: “In districts.having more than one judge, each judge 1 therein shall have the power to order drawn such number of grand and petit jurors as may be necessary to serve in the court presided over by such judge. ’ ’ This statute doubtless confers upon each judge, in districts where there are two or more judges, the power to order drawn a panel of jurors specially for the division of the court over which he presides, and when so. drawn such jurors cannot be used in another division where another judge presides; but, while each judge has the power, there appears to be no provision to compel him to exercise it where no necessity therefor exists. Notwithstanding this provision confers such power, we are of the opinion that the several judges may proceed, as provided in sections 1310 and 1311, Rev. St. 1898, and order a general panel to be drawn in each county in the district for the purposes of the district court' of such county, and the jurors so drawn may serve in any division of such court .within the county where drawn. The power conferred upon the judges by virtue of section 1313 was doubtless intended by the Legislature to be exercised only when a speedy and economical administration of justice requires its exercise. “Where, then, as admittedly in this case, the jurors constituting the panel were drawn for general service in all the divisions of the court, and were used by the several judges as one panel, it is not error to deny a challenge to the panel upon the ground that it was drawn generally for all the divisions of the court, instead of specially for the particular division where the case is being tried. The appellant, in support of its position as to this point, cited the case of People v. Wong Bin, 139 Cal. 60, 72 Pac. 505, but that case can readily be distinguished from this. There a panel of jurors had been drawn for each particular department of the court, and the appellate court — 258 — held it was prejudicial error for the judge of one department engaged in the trial of a criminal case, having its own regular panel of jurors present before it, to place in the jury box the names of jurors regularly drawn for another department, and to impanel the jury therefrom. The question herein considered was therein neither involved nor decided, but it was intimated that a general panel might be practicable and might be drawn in counties having two or more departments, for use in all the departments. This appears from the opinion, where it was said: “The question as to whether or not, where there are two or more departments of the superior court in any county, the judges thereof may unite in drawing one panel for general service in all of said departments, is not here involved, and need not here be decided, for such a course was not followed as to the jurors in the case at bar. Here the judge of each department had regularly drawn his own panel for service in his own department. Such panels were drawn at different times, and constituted separate and distinct panels, which could be brought together1 and joined only by some subsequent order, for which the statute furnishes no authority. The method suggested of one general panel may be practicable in some counties having two or more departments — a question not necessary here to decide — but it is clear that, to make it possible, the jurors must all be drawn at the same time, and the panel so drawn and summoned must at all times be used as one panel.”’ None of the cases cited by the appellant on this point militate against the views we have expressed. 2 Nor is the position of the appellant that it was entitled to have the entire panel of jurors available for the selection of the jury in this case sound. If this were imperative as to a general panel in the trial af civil causes, then, as may easily be observed, the court, after submitting one case to a jury, would be unable to proceed with another until a verdict had been returned in the case submitted, although there might — 259 — be plenty of idle and competent jurors from whom another satisfactory jury could be selected. When the length of time which juries frequently consume in arriving at their verdicts is considered, the great delay in the trial of causes which would thus be occasioned is obvious. We are aware of no law in this State that would warrant such a practice. The parties to every case at law may demand a fair and impartial jury to be selected from the panel of jurors drawn for service in the court where the case is to be tried, but whether such jury be selected from the entire panel or only a portion thereof is immaterial. If the jurors constituting the jury are competent, fair, and impartial, it is all that the law requires and the litigants can demand. This is doubtless so as to a general panel of jurors. As to a special venire it may be otherwise. 3 The appellant also contends that the court erred in admitting in evidence the notice of claim for damages presented to the city council to be audited and allowed. The objection to the notice was that it did not sufficiently describe the place where, nor sufficiently designate the time when, the accident occurred. In this class of cases notice is required to- be given to the city council by statute, which, inter alia, provides for the presentation of claims resulting from defective, unsafe, dangerous, or obstructed sidewalks, and the notice must describe.the “time, place, cause, and extent of the damages or injury.” Section 312, Rev. St. 1898. And a failure to present a claim to the city council in the manner provided by the statute is made a “bar and answer to any action or proceeding against a city.” Section 313, Rev. St. 1898. The notice in question, so far as material here, reads: “ I hereby present to the City Council of Salt Lake City, a claim for damages for personal injuries by me sustained, on or about .January 15, 1902, while walking on the sidewalk at and along First West Street, between Seventh and Eighth South, in said city, through the negligence of said city in suffering and permitting said sidewalk at — 260 — said place to be out of repair and obstructed, and suffering and permitting a fence, fencing material and obstructions to be upon and along the said sidewalk.” While this notice was not drawn with such particularity as proper’ caution would suggest, still we do not think it is fatally defective. In determining the sufficiency of such a notice the court is not bound by its terms alone, but may examine it in the light of extraneous evidence showing, the situation and surroundings and thus determine whether it sufficiently apprised the municipality of the location and nature of the alleged defect or obstruction which caused the accident. Doubtless the principal purpose of the notice is to afford the proper officers an opportunity to look into the facts and circumstances connected with the occurrence; to preserve the evidence of the existing conditions; to determine the liability of the municipality; and, in case liability exists to effect a settlement without resort to litigation. When therefore, such a notice is.not misleading, but advises the municipality promptly of the accident and claim, so as to afford an opportunity for investigation, it is sufficiently definite, and satisfies the purpose and requirements of the law. It is true, in this case the accident is stated in the notice to have occurred “on or about January 15, 1902,” the precise time not being stated, but the evidence shows that the occurrence did actually take place on the night of the day mentioned, and there is nothing td show that any other accident happened on or about that time or at that place. Nor is it claimed or shown that any officer was in any way misled in any investigation because of the failure to state the exact time. The statement as to time, therefore, cannot be held to have been prejudicial. So the notice fails to state the exact spot where the accident occurred, simply stating that it happened on “First West between Seventh and Eighth South” streets; but both the notice and the evidence show that the obstruction was of such a character that no officer, in the exercise of ordinary care, could walk or drive along the street at the place stated without observing — 261 — the dangerous condition of the sidewalk where the injury occurred. It is clear that the notice did not mislead the municipality, and considering it in its entirety, we are of the opinion that it was sufficiently definite to sub-serve the purpose of the statute, and that it was properly admitted in evidence. On similar questions other courts have ruled likewise. Burdick v. Richmond, 16 R. I. 502, 17 Atl. 917; City of Lincoln v. O’Brien, 56 Neb. 716, 77 N. W. 76; Rusch v. City of Dubuque, 116 Iowa 402, 90 N. W. 80; Owen v. City of Ft. Dodge (Iowa), 67 N. W. 281; Lyman v. Hampshire, 138 Mass. 74; Lowe v. Inhabitants of Clinton, 133 Mass. 526; Brown v. City of Owosso (Mich.), 85 N. W. 256; Harder v. City of Minneapolis, 40 Minn. 446, 42 N. W. 350. The appellant further contends that the court erred in refusing to direct a verdict in favor of the defendant. This assignment of error is predicated upon two grounds, namely, the insufficiency of the notice of claim and failure of proof showing negligence on the part of the defendant. The answer to this contention is that, as we have seen, the notice was sufficient under the statutes, and the evidence respecting the negligence of the municipality was of such a character as to render the submission of the case to the jury imperative. The court therefore committed no error in this regard. Nor do we think the court erred in refusing,'under the facts and eirchmstances of this case, the several requests of the defendant to charge. The jury appears to have been properly instructed upon all material points. Hpon careful examination of the record we find no reversible error. The judgment is affirmed, with costs. BASKIN, C. J., and McCARTY, J., concur.