Ray v. Salt Lake City , 92 Utah 412 ( 1937 )

On January 3, 1936, plaintiff, Julia A. Ray, filed her complaint against Salt Lake City, alleging the corporate capacity of the defendant, and, among other things, that on or about August 20, 1935, and for a long period prior thereto, the sidewalk opposite No. 115 on Kelsey avenue, a thoroughfare of the city, was and had been in an unsafe and dangerous condition, in that one section of the cement sidewalk was raised so that it was higher than the one immediately to the west of it; that the plaintiff, as she was proceeding easterly on the north side of Kelsey avenue at a place definitely indicated, at about 11:30 o'clock at night, the street at that place being unlighted, tripped over or against the raised section of the sidewalk, stumbled and fell, and dislocated her shoulder and received other injuries, with resulting damage.

Negligence on the part of the defendant city is charged because of carelessness in maintaining or permitting the sidewalk to be in such dangerous and unsafe condition.

Claim was timely and properly presented to the city.

Demurrers to the original and to an amended complaint were interposed by the defendant which were overruled. The defendant by answer denied generally the allegations of the complaint and pleaded contributory negligence.

A trial was had before the court sitting with a jury. A verdict was returned by the jury in favor of plaintiff, and judgment entered accordingly. Motion for a new trial was filed, argued, submitted, and overruled. The trial court committed no error in overruling the general and special demurrers or denying defendant's motion for a directed verdict, nor in denying defendant's motion for a new trial.

We state thus briefly our conclusions as to these issues for the reason that in argument one dominating issue forms the basis of all of the arguments except as to one requested instruction to the jury. That issue presented is: In such case must plaintiff allege a specified difference in elevation of adjoining sections of a sidewalk, so that when alleged definitely such specified difference then submitted to the court an issue of law and the court must either say the specified difference is sufficient to make a prima facie case of negligent maintenance or not?

No suggestion is made that there is no evidence to support the verdict. The only conflict in the evidence relates to the difference in elevation of the adjoining sections of the sidewalk on Kelsey avenue where the accident occurred.

As is indicated by the long list of cases cited by respective counsel and from the decided cases, much has been written on all phases of the question. It was said in a similar case by this court that from the mere point of numbers the weight of authority was with the contention that less than a specified difference in elevation of adjoining portions of a sidewalk was not sufficient to charge a municipality with the result of injuries received by one who fell by tripping while stepping from a lower to a higher section. The numerical weight of authority is now the other way. This court in discussing the matter in the case of Shugren v. Salt Lake City, 48 Utah 320,159 P. 530, 533, refused to follow what was then recognized as the numerical weight of authority, and followed what appears to be the only course that could be followed. It was there said:

"This court is firmly committed to the doctrine that ordinarily the question of whether the maintenance of a particular defect in a street or sidewalk constitutes negligence on the part of the municipality is a question of fact for the jury."

The following cases are cited: Jones v. Ogden City,32 Utah 221, 89 P. 1006; Bills v. Salt Lake City, 37 Utah 507,109 P. 745; Robinson v. Salt Lake City, 40 Utah 497,121 P. 968; Sweet v. Salt Lake City, 43 Utah 306, 134 P. 1167.

In the very nature of the situation it must be obvious that the courts ought not and cannot arbitrarily determine that the maintenance of a particular defect in a street or sidewalk does or does not constitute negligence. As a matter of law this statement is subject to the limitation that when 1 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 sidewalk or street constituted negligence on the part of the municipality, the question may then be one of law; otherwise the issue is one of fact to be submitted to the jury. We think this is what the Shugren Case holds.

In the case of Taylor v. Ogden City, 61 Utah 455,214 P. 311, 312, the Shugren Case is referred to as having settled the doctrine. The prior decisions of this court and cases from other courts are cited and reviewed, and upon the authorities the case of Taylor v. Ogden City, supra, says:

"A mere cursory examination of the Shugren Case will at once make clear that to permit the defect described by respondent and his witnesses to remain in the street cannot be declared not to have constituted negligence as a matter of law."

Whether a particular defect in a street or sidewalk is reasonably safe or dangerous for travel depends not always upon the matter of difference of elevation or depression, but upon all the surrounding circumstances. Under circumstances a step or steps may be maintained. We need not further attempt specifications. Needless to say also that the city is not an insurer. It is the duty of a municipal corporation, generally speaking, and as a matter of law, to use ordinary care and diligence to keep its streets and sidewalks in a reasonably safe condition for the ordinary uses to which they are subjected.

The evidence showed that the difference in elevation of the adjoining sections of the sidewalk had remained substantially as alleged for a period of about twelve years. The defect, having existed so long, in view of the location, should have attracted the attention of the city officers and caused them, in the exercise of ordinary care, to correct the defect. It was sufficient to constitute constructive notice that the defect might cause injury.

As to the actual difference in elevation of the adjoining sections there was not much difference of opinion or measurement. The elevation on the north side of the walk being about three-fourths to seven-eighths of an inch, and on the south side of the walk about one-fourth to three-eighths of an inch. We cannot say that the specified difference in 2 elevation is so slight that a careful or prudent person might not reasonably anticipate danger from its existence, especially in view of the situation and other surrounding circumstances that might have a bearing upon the existing condition.

Opposing counsel have cited and referred in their briefs to many cases. Interesting and profitable as it might be to do so, it would be an unnecessary diversion to attempt to read and distinguish all of them. Broadly speaking they all fall into two general classes; one class in which the defect has been, either by the court or the jury, held to be so slight as not to be actionable even though the same underlying principle governing the cases may have been recognized; the other, the matter has been held to be sufficient to go to the jury. The whole situation is summed up in a statement quoted in the case of City of Tulsa v. Frye, 165 Okla. 302, 25 P.2d 1080, 1082.

"It would be a serious inroad on the province of the jury if, in a case where there are facts from which negligence may be reasonably inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever."

To attempt to fix an arbitrary height or depth of irregularity applicable to all cases would be more intolerable than either. In the instant case the jury examined the walk at the scene of the accident.

Appellant contends that the trial court erred in failing to give the following requested instruction:

"You are instructed that the duty imposed on the defendant was to repair only such sidewalks as were so out of repair as to endanger persons passing thereon and that defendants are not liable for every defective sidewalk but only for such as are so out of repair as to endanger persons passing thereon and I instruct you that if you find from the evidence that the sidewalk where the plaintiff has testified that she was injured was not so out of repair as to endanger persons in ordinary health and of ordinary strength and with the ordinary control of their muscles and faculties while passing thereon, you must find for the defendant."

The foregoing instruction in substantially the same language was held to state the law in the case of Taylor v. Manson,9 Cal. App. 382, 99 P. 410. If the instruction was intended to direct the jurors' attention to a condition that the plaintiff, considering her age, was not in ordinary health or strength, and did not possess the ordinary control of her faculties and muscles, it is sufficient to say that 3 in the instant case no such issue was before the court. Neither do we observe any necessity for particularity as to these "ordinary" conditions. The quoted requested instruction is directed to the fact that sidewalks must be kept in such state of repair as not to endanger persons, that is, the public generally, while passing thereon. The court, among other things, instructed the jury before they could find for plaintiff they must, among other specified things, find that the defect in the sidewalk was a dangerous obstruction, or caused the sidewalk not to be reasonably safe for the use for which it was constructed and maintained. The jury were instructed they were to consider the instructions as a whole, and when so considered we are of the opinion the appellant has no cause to complain.

Finding no error, judgment is affirmed. Respondent to recover costs.

LARSON, J., concurs.