Parker v. City and County of Denver , 128 Colo. 355 ( 1953 )

Mr. Justice Alter

delivered the opinion of the court.

Frances I. Parker brought an action against the City and County of Denver to recover a judgment for damages allegedly sustained by her by reason of an accident on one of the public streets of that city. At the conclusion of all the evidence the court granted defendant’s motion for a directed verdict and entered judgment accordingly. Plaintiff is here by writ of error seeking a reversal of the judgment.

The court, in granting defendant’s motion for a directed verdict, stated:

“The motion of the City and County of Denver for a directed verdict is granted, the Court finding as a matter of law that the defect in this sidewalk at the time of the accident on December 10, 1949, was, in fact, less than one inch, and as such was so slight as to impose no duty upon the City to either discover or to correct the same.

“Accordingly, the Court will prepare the verdict for the signature of one of the jurors.”

Plaintiff’s evidence may be summarized thusly: On the night of December 10, 1949, at about 7 o’clock P. M., plaintiff was walking on the sidewalk near 1216 York Street when, by reason of a crack and rise of one inch or more in the public sidewalk, she tripped on said elevation and fell, resulting in serious and permanent bodily injuries. Witnesses for plaintiff testified that the said walk was constructed of concrete blocks and that at the place where plaintiff was injured, the elevation of one block over an adjoining block varied from one and a half to two inches on one side thereof and tapered to about one inch on the other side, and that this condition of the sidewalk had remained for some considerable period of time prior to the date of the accident. Plaintiff testified that she was employed as a school teacher prior to the accident and had occasion to travel over this particular sidewalk frequently.

Defendant’s evidence as to the rise or elevation in the sidewalk, by actual measurement with a ruler, was that it was not oyer one inch or slightly less than an inch, and at the exact center of the walk was three-fourths of an inch.

At the conclusion of all of the evidence, and upon motion of defendant, as hereinbefore stated, the court directed a verdict, and in connection therewith stated that it found, as a matter of law, that the defect in the sidewalk was less than one inch. There was competent evidence that the defect in the sidewalk at or near the place where the alleged injuries occurred was on and a half to two inches in elevation, and it is well-settled law in this jurisdiction that a party making a motion for a directed verdict admits the truth of the adversary’s evidence and every favorable inference of fact which may be legitimately drawn therefrom. It also is equally well settled in this jurisdiction that negligence results from a failure to do what an ordinarily careful and prudent person would have done under the circumstances of the case. It is not here contended that defendant is an insurer of the safety of pedestrians on its sidewalks, nor that every defect or unevenness therein creates a liability on its part if an accident occurs thereon, but it is plaintiff’s position that the defect here, under the evidence, was such that representatives of defendant could reasonably anticipate danger from its existence and that reasonably prudent men might honestly reach different conclusions as to defendant’s liability. This being so, it is plaintiff’s contention that the trial court erred in granting defendant’s motion for a directed verdict for here it is contended that the evidence presented facts for the jury’s determination.

Our court in the case of City of Denver v. Hyatt, 28 Colo. 129, 63 Pac. 403, held that a failure on the part of the city to exercise reasonable care to keep its sidewalks in reasonably safe condition for travel was negligence, and it also held that its failure to so maintain its sidewalks would render it liable for damages to a pedestrian thereon who, in the exercise of ordinary care and diligence, was injured by reason of the defective sidewalk. The decision in Denver v. Hyatt, supra, remained the law in this jurisdiction until our decision in the case of Denver v. Burrows, 76 Colo. 17, 227 Pac. 840.

In Denver v. Burrows, supra, the sidewalk was constructed of cement blocks, and an unevenness occurred therein so that “One of these blocks was so elevated that while one end thereof was even with the adjoining block, the other end was one and five-eighths inch higher. The elevation was one and three-eighths at the point where, according to testimony, the plaintiff struck her toe against the edge of the raised block.” It was in that case held: “In our opinion, the defect involved in the instant case was such that, as a matter of law, it did not render the sidewalk not reasonably safe. It was a slight defect from which danger was not reasonably to be anticipated.” We therein cited Northrup v. City of Pontiac, 159 Mich. 250, 123 N.W. 1107, and also Beltz v. City of Yonkers, 148 N.Y. 67, 42 N.E. 401, where inequalities of two inches or less in a sidewalk were held, as a matter of law, not to render it reasonably unsafe for public travel.

Subsequently, in City of Colorado Springs v. Phillips, 76 Colo. 257, 230 Pac. 617, where the obstruction in a sidewalk was “perhaps two inches,” we held, based on the opinion in Denver v. Burrows, supra, that a “defect of this kind was, as a matter of law, insufficient to show lack of reasonable care in a municipal corporation.”

It should be noted that the elevation with which we were concerned in the Burrows case was one and three-eighths inches while the projection in City of Colorado Springs v. Phillips, supra, was two inches. If two inches was, as a matter of law, not negligence because of our holding in the Burrows case, supra, then one and three-eighths inches was, as a matter of law, not negligence, then five-eighths of an inch can be disregarded on the authority of these two opinions, and it is apparent therefrom that the next case, with a two and five-eighths inch projection, would, consistent therewith, be, as a matter of law, not actionable negligence, and, progressively, there would be no such thing as negligence on the part of the city in the maintenance of its sidewalks.

In Nelson v. City and County of Denver, 109 Colo. 113, 122 P. (2d) 252, where the trial court had granted the city’s motion for judgment on the pleadings, our court held that error was committed. In that action it was alleged that plaintiff was injured as a result of an accident on a cement sidewalk where one slab of the sidewalk “was raised approximately two inches above the level of the adjoining concrete slab,” and in support of its motion for judgment on the pleadings, the city relied on our opinion in Denver v. Burrows, supra. With reference thereto we said:

“We did not hold, and if we had, the holding would have been dictum, that we would follow such cases further than as to an inequality of one and three-eighths inches. Furthermore, in that case we were speaking in the light of the evidence as to all the facts and circumstances of the case, for the cause had been tried, and presumably the evidence was in the record before us. The general and, as we think the controlling, principle in such cases is set forth in our opinion in the case as follows: ‘Mere irregularity and inequality of the surface of a way does not of itself make a city liable for damages sustained at such a place. A municipality is held only to the maintenance of a reasonably safe sidewalk. Griffith v. Denver, 55 Colo. 37, 44, 132 Pac. 57; Pueblo v. Smith, 57 Colo. 500, 143 Pac. 281. A defect in a street sidewalk, to be actionable, must be such that a reasonably prudent person would anticipate danger from its existence. Denver v. Hyatt, 28 Colo. 129, 63 Pac. 403. Sometimes this is a question for the jury, as in Griffith v. Denver, supra, and sometimes the defect is such that, as a matter of law, it is not actionable, as was the case in Pueblo v. Smith, supra. Each case must be determined on the facts in evidence. Denver v. Hatter, 68 Colo. 194, 188 Pac. 728.’

“With the principle thus announced in mind, we think it an unreasonable construction of the opinion to say that it lays down the proposition that, whether permitting an inequality or raised block in a sidewalk, constitutes actionable negligence may be determined simply with a foot rule. * * * ”

As was pointed out in Nelson v. Denver, supra, no definite or mathematical rule can be laid down as to the depth of a depression or elevation in a sidewalk necessary to constitute actionable negligence against a municipality. We think it clear from the opinion in that case that the extent of the depression or elevation in a street which will relieve the city of actionable negligence in its maintenance must vary with other circumstances as we therein said. The other circumstances which must be taken into consideration in all of these cases is the amount of travel on the sidewalk, the location of the depression or elevation, the nature of the area, and other circumstances which may properly be considered by a jury in the determination of the case. There may be instances in which the court, with judicial propriety, may determine that the defect in the sidewalk is so slight that actionable negligence becomes a question of law, but there is, in almost all instances, a shadow zone where the facts are such that the question must be submitted to the jury, and it then becomes its duty to take into consideration all of the facts and circumstances in connection with the accident. We believe it improper and error for a court to undertake to determine actionable negligence by a fraction of an inch for if the depression in Colorado Springs v. Phillips, supra, is held to be good law, then if the depression or elevation is two inches or less there is no actionable negligence, whereas, if it is a fraction of an inch over two inches it may be actionable and require a jury’s determination of negligence. This is an absurd situation, and we cannot subscribe thereto. It has been announced in many decisions, some of which we shall cite hereinafter, that each case necessarily must be determined by the surrounding circumstances, and generally the matter must be left to a jury.

We have called attention to the fact that the court relied somewhat on the decision in Denver v. Burrows, supra; Northrup v. City of Pontiac, supra; and Beltz v. City of Yonkers, supra. We have examined these decisions and find that in Michigan the courts have consistently relied upon the rule announced in Northrup v. City of Pontiac, supra, wherein it is said: “A careful examination of all of them [cases cited] leads to the conclusion that the court has held, as a matter of law, that an inequality of two inches or less in a sidewalk does not render it not reasonably safe for public travel. It is obviously difficult to determine at just what point a jury shouldloe permitted to pass upon the question. The case at bar, however, in our opinion, clearly falls within the rules laid down in the cases cited supra.”

Our examination in connection with the opinion in Beltz v. City of Yonkers, supra, discloses this situation in that jurisdiction. In that case there was a two and a half inch projection. Upon the authority of Beltz v. City of Yonkers, supra, it was held in Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N.E. 944, that a four-inch projection or depression was not, as a matter of law, actionable negligence. Later, in Butler v. Village of Oxford, 186 N. Y. 444, 79 N.E. 712, on the authority of Beltz v. City of Yonkers, supra, and Hamilton v. City of Buffalo, supra, it was held that a five-inch projection or depression was not actionable negligence. However, we find that in Loughran v. City of New York, 298 N. Y. 320, 83 N.E. (2d) 136, the rule announced in Beltz v. City of Yonkers, supra, has now been radically changed, and therein we find the following:

“ * * * tpg cj[ty pas prevailed in its contention that the complaint should be dismissed on the ground that there was no evidence that the hole was four inches in depth or that it constituted a ‘trap.’

“For the past twenty years at least, this court has declined to recognize any such principle as that urged by the city. On the contrary, we have held that there is no rule that the liability of a municipality in a case of this sort turns upon whether the hole or depression, causing the pedestrian to fall, is four inches—or any other number of inches—in depth or constitutes ‘a trap.’ See, e.g., Norbury v. City of Buffalo, 246 N. Y. 605, 159 N.E. 669; Wilson v. Jaybro Realty & Development Co., 289 N. Y. 410, 46 N.E. 2d 497; Dowd v. City of Buffalo, 290 N. Y. 895, 50 N.E. 2d 297; Lynch v. City of Beacon, 295 N. Y. 872, 67 N.E. 2d 515; Pratt v. Village of Seneca Falls, 295 N. Y. 690, 65 N.E. 2d 332. As we but recently observed, there is no requirement that ‘a hole in a public thoroughfare * * * be of a particular depth before its existence can give rise to a legal liability.’ Wilson v. Jaybro Realty & Development Co., supra, 289 N. Y. at page 412, 46 N.E. 2d at page 498. A municipality’s liability depends on whether or not, having in mind the circumstances of each case, it has neglected and failed to keep its public thoroughfares-—whether the sidewalk of a street or the pathway in a park—in a condition reasonably safe for pedestrians.” (Italics ours.)

In the following cases, among many others, it is held that actionable negligence in connection with the maintenance of a sidewalk is a question of fact for the jury’s determination: Smith v. City of Bluefield, 132 W. Va. 38, 55 S.E. (2d) 392, one and one fourth inch projection; Beach v. City of Des Moines, 238 Ia. 312, 26 N.W. (2d) 81, one and a half to two inches; Kimball v. City of Cincinnati, 92 Ohio App. 487, 111 N.E. (2d) 28, offset of one inch to one and a half inches; Young v. Public Service Company (Mo. App.) 255 S.W. (2d) 113, depression of one to one and a half inches; City of Louisville v. Wheeler, 301 Ky. 222, 191 S.W. (2d) 386, one and three fourths inch projection; President & Commissioners, etc. v. Kelly (Md.) 89 A. (2d) 594, depression of one half to one and three fourths inches; District of Columbia v. Williams (District of Columbia Municipal Court of Appeals) 46 A. (2d) 111, elevation between one and one and five eighths inches; Gurney v. Rapid City (S. D.) 50 N.W. (2d) 360, depression of one inch; Ray v. Salt Lake City, 92 Utah 412, 69 P. (2d) 256, elevation of seven eighths to three fourths of an inch; City of Guymon v. Eaton, 193 Okla. 73, 141 P. (2d) 555, depression of one and five eighths to one and three fourths inches; Palmer v. City of Long Beach, 33 Calif. (2d) 134, 199 P. 952, depression of from one fourth of an inch to three inches; Dillow v. City of Yuma, 55 Ariz. 6, 97 P. (2d) 535, depression of approximately two inches; Johnson v. City of Ilaaco, 38 Wash. (2d) 408, 229 P. (2d) 878, one and one fourth inches; Maloney v. City of Grand Forks, 73 N. D. 445, 15 N.W. (2d) 769, one inch to one and one fourth inches; Henn v. City of Pittsburgh, 343 Pa. 256, 22 A. (2d) 742, one and a half to two inches; City of Phoenix v. Weedon, 71 Ariz. 259, 226 P. (2d) 157, one and a half to two inches; Quinn v. Stedman, 50 R. I. 153, 146 Atl. 618, one fourth to one and one fourth inches.

In this jurisdiction following a long and unbroken line of decisions, it has been held by our court that where the evidence on material facts is in conflict, or in event there are undisputed facts upon which reasonable and fair-minded men may form different opinions and draw different conclusions or inferences, then the question of negligence is one for determination by a jury.

We find the following in 19 McQuillin, Municipal Corporations (3d ed.) page 612, section 54.204: “Although the question of the municipality’s negligence is generally a question of fact for the jury, yet where only one inference can be drawn from the evidence, the question of negligence becomes one of law for the court. In other words, when it is made to appear that the case is one upon which reasonable minds would not arrive at a different conclusion with regard to whether the maintenance of a particular defect in a street or sidewalk constituted negligence on the part of the municipality, the question may then be one of law.” See, also: 1 Shearman and Redfield on Negligence (Rev. ed.) p. 109, §40, et seq.; 63 C.J.S., p. 454, §941, et seq.; 53 Am. Jur., p. 141, §156, et seq.; 119 A.L.R. 161.

Here, under our decision in Colorado Springs v. Phillips, supra, it became the court’s duty to grant the motion for a directed verdict because, under the evidence, the depression did not exceed two inches, and this we had determined not to be actionable negligence. We have concluded that the opinions of this court in Denver v. Burrows, supra, and City of Colorado Springs v. Phillips, supra, are basically wrong in their determination that depressions or elevations constituting actionable negligence may be measured by inches. If the law as announced in these cases is to be followed in this jurisdiction, then a pedestrian who sustains an injury on a sidewalk where the projection or depression is 1-31/32 inches in height or depth, no matter where or under what circumstances the injury may have occurred, is not entitled to maintain an action against a municipality, and it becomes the court’s duty so to declare, whereas one whose injury on a sidewalk occurred at a place where the projection or depression was 2-1/32 inches in height or depth, actionable negligence then becomes a question for the j ury’s determination.

We are compelled to hold that our opinions in Denver v. Burrows, supra, and City of Colorado Springs v. Phillips, supra, are basically wrong in so far as they determine negligence' solely by inches, and it becomes our duty definitely to overule the same, which, accordingly, is done.

The judgment is reversed and set aside and the cause remanded to the district court, further proceedings, if any, to be in harmony herewith.

Mr. Justice Holland dissents.