Mackay v. Salt Lake City , 29 Utah 247 ( 1905 )

McCARTY, J.

(after stating the facts.)’

The first contention made by appellant is that it cannot be held liable for the damages suffered by respondent, because the accident occurred on a road which is situated outside of, and a considerable distance from, the inhabited portion of the municipality. The evidence is undisputed that the city at and prior to the time of the accident exercised control over the bridge in question, and had on several occasions made repairs thereon. Bert Pratt, who was at "the time “bridge carpenter” for the city, was called as a witness, and testified that the planks which formed the floor of the bridge were placed there by him. He also testified that a few days prior to the accident he, as bridge carpenter, inspected and made an examination of the woodwork of the structure. It also appears from the record that the street supervisor of the city, long before respondent was hurt, covered the bridge with the dirt referred to in the foregoing statement of facts, and that prior to the accident.he was repeatedly notified of the unsafe condition of the bridge, but failed to make the necessary repairs. The city having thus assumed control, and in effect, ownership, of the bridge, was legally bound to use ordinary diligence to keep it in a reasonably safe condition. In Elliott on Eoads and Streets (2 Ed.), section 59, the rule is stated as follows:

“When a city takes charge cf a bridge, and asserts control and ownership over it, there is sufficient reason for holding it bound to keep the bridge in repair.”

In 15 Am. & Eng. Ency. Law (2 Ed.), 428 it is said:

“The duty of a municipality as regards a highway is, it seems, affected by the amount of use of such highway; but this does not affect its duty to keep every highway within its limits in a reasonably safe condition.”

Under the circumstances of this case, the question of negligence on the part of the city was one for the jury to determine. (Thomas v. Springfield, 9 Utah 426, 35 Pac. 503.)

The next question presented by this appeal is, did plaintiff, by filing a claim for $1,520 only, with the city recorder, for damages, limit his right of recovery to that amount % Appellant insists that plaintiff, having filed his claim against the city for the sum mentioned, is precluded from recovering a greater amount, and that the court erred in failing to so instruct the jury, the appellant having presented a request to that effect. Section 312, Revised Statutes 18'98, provides as far as material here, that

“All claims against a city or town for damages or injury alleged to have arisen from the defective, unsafe, dangerous, or obstructed condition of any street, ... or bridge of such city or town, or from the negligence of the city or town authorities in respect to any such street, . or bridge, shall, within ninety days after the happening of such injury or damage, be presented to the city, ... in writing signed by the claimant or some authorized person, and properly verified, describing the time, place, cause and extent of the damage or injury, and no action shall be maintained against any city or town . . . unless it appears that the claim for which the action was brought was presented to the council, . and that the council . . . did not, within ninety days thereafter, audit and allow the same.”

It is evident that the purpose of the statute is to enable the municipality, against which a claim of this character is made to examine the highway, bridge, or other place where the injury or damage is alleged to have been sustained by the claimant, and thereby determine the nature and character of the defect in the highway, and the extent of the damages or injuries sustained by the claimant; and if, upon such investigation, the claim is found to be meritorious, and one for which the city is liable, to settle the claim, and thus protect itself from unnecessary .costs. And, on the other hand, if the demand is found to be without merit, the city will be better able to secure evidence and prepare its defense than if the matter were deferred until after the alleged defect in the highway had been repaired, or its condition otherwise changed. Besides, long delay in presenting a claim would make it difficult, and in many cases impossible, for the municipality to procure witnesses and secure the evidence which it might otherwise do if the claim were presented soon after the alleged damages or injuries are sustained. The mere fact that a claimant in cases of this kind includes in his demand a less amount than he is entitled to recover does not, upon his claim being rejected, preclude him from bringing suit and recovering for the damages and injuries actually sustained, even though they exceed the amount of his claim on file. This rule is in accordance with the great weight of authority. In 20 Am. & Eng. Ency. Law (2 Ed.), 1233, it is said:

“It has been held that the plaintiff’s claim presented should specifically state the amount demanded, though this is not invariably the case. The plaintiff may, however, subsequently sue for and-recover more than the amount of his original claim, or he may institute suit for less than the amount demanded on the same facts as set forth in his claim.” (Minick v. City of Troy, 19 Hun 253; Reed v. City of New York, 91 N. Y. 620; City of Salina v. Kerr, 7 Kan. App. 223, 52 Pac. 901; City of Wyandotte v. White, 13 Kan. 191.)

Tbe record shows that the claim in this case was filed with the city recorder six weeks after plaintiff was injured, and it was more than five months thereafter when it was rejected -and disallowed by the city. In cases like this it might often happen that the full extent of the injuries received could not be accurately determined within the time in which the claims must be filed as required by .law, and it might develop long afterwards that the injuries were of a much more serious character than they appeared to be when received. So, in this case, it appears from the record that the injuries to plaintiff’s leg and back are permanent in character, and which, at the time he filed his claim, he might well have believed were only temporary, and from which he would, in the course of time, recover. In the case of Noble v. Portsmouth, 61 N. H. 183, 30 Atl. 419, this same question was involved, and the court, in the course of the opinion, says:

“But if the town declines to settle there is no reason why the plaintiff, who has innocently underestimated his claim, should not recover actual damages. His injury, which at first may seem slight, may prove to be serious. Within the brief period for filing the statement the nature and extent of his injuries may not have become developed. Time may demonstrate he was honestly mistaken, and the law does hot visit upon him consequences which result from no fault of his.” .

There are several other errors assigned, but, as they are without merit, we do not deem it necessary to discuss them.

We find no reversible error in the record. The judgment is therefore affirmed, with costs.

BAETCH, C. I., and STEAUP, J., concur.