District of Columbia v. Boswell

6 App. D.C. 402, 1895 U.S. App. LEXIS 3599

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. After careful consideration of the whole case, we have •come to the conclusion that we would not be justified in .holding that the court erred in refusing to direct a verdict for the defendant.

The defect does seem to be a slight one, from a general point of view, and one that may not have attracted the attention of ordinary passers-by who did not come in contact with it. Yet there was evidence showing that one person had noticed the condition of the gas box and surrounding bricks a year before the accident occurred, had seen persons stumble on it, and had called it to the attention of his landlord. Another witness had herself stumbled on the same object more than once before. There is no doubt from the evidence that plaintiff, while engaged in innocent play, did actually stumble and fall over it and receive a serious and permanent injury. There was no evidence on behalf of defendant tending to show that there had ever been any inspection or examination of the gas boxes located in the sidewalk at that or any other point, or that any supervision had been exercised over their construction and maintenance. The witnesses were before the court, together with the plaster representation of the gas box and the surrounding bricks, which was produced by the defendant with the consent of the plaintiff. We have no right to reverse the judgment for error in refusing to direct a verdict for the defendant unless thoroughly satisfied that no recovery could properly be had by the plaintiff upon any view that could be taken of the facts the evidence tends to establish. Gardner v. Mich. C. Railroad Co., 150 U. S. 349; Wash. Gas Co. v. Poore, 3 App. D. C. 127. The learned justice who presided at the trial may have believed that there was culpable negligence on the part of the defendant, or he may have been uncertain as to its existence. In either event, the question was necessarily for the determination of the jury. If uncertain at the time, he still had the power to set aside the verdict, if not satisfied with the justice thereof, .after mature consideration. Instead of setting it aside, he gave it his approval and rendered judgment accordingly. We cannot see our way clear to revise his action in this regard, and it remains only to consider whether there was any error committed in the application of the law to the facts in ■evidence. Necessarily, certain controlling questions of law .have been involved in the consideration of the assignment of error above discussed, but it has been deemed advisable to treat them separately under the special assignments made thereon.

2. On account of the very general nature of the second error assigned, viz : “ The court erred in granting the several prayers of the plaintiff,” we do not feel called upon to consider the various special objections to the six prayers granted on behalf of plaintiff. We shall therefore consider only the substantial objections thereto which have been more or less involved in the determination of the error assigned on the refusal of the court to direct a verdict for the defendant. The following legal propositions were embodied in the special prayers of the plaintiff, which were so •qualified by and explained in the general charge of the court as that their purport, as well as their application to the facts, could not be misunderstood by the jury.

(i) It is the general duty of municipal corporations to so construct the public streets and sidewalks and keep them in repair that they may be fit for the uses intended and reasonably safe against accident to those using them in a proper manner at all times. District of Columbia v. Woodbury, 136 U. S. 450, 463; District of Columbia v. Haller, 4 App. D. C. 405; Washington Gas Co. v. Poore, 3 App. D. C. 127; District of Columbia v. Bolling, 4 App. D. C. 397.

The corporation, however, is not held to insure the safety of those who use the street or sidewalk, and, therefore, is under no absolute obligation to respond in damages for every accident that may happen where there is no contributory negligence on the part of the person injured. District Columbia v. Woodbury, supra. There was no evidence in this case that the gas box had at first been properly and carefully set in the sidewalk, but this seems to have been assumed on the trial, and we will assume it also. Where once a street has been put in good condition and made reasonably safe against all accidents that could reasonably be foreseen and provided for, and afterwards becomes dangerous from any cause, the corporation would not be liable for an injury resulting therefrom, unless it had notice of such dangerous condition in time to have repaired it. This timely notice may be either actual or constructive. Admitting that notice may be constructive, it is earnestly contended, on behalf of the appellant, with the support of weighty authority, that not only must the dangerous condition have existed for some length of time, but also that “ it must be so open and palpable as to be apparent to and necessarily attract the attention of passers-by.” We quite agree with the court below that this states the rule too strongly in favor of the defendant. Its establishment, it seems to us, would tend to give municipal corporations complete immunity save in the case of glaring defects and obstructions, by virtually excluding the idea of a duty on their .part to inspect the streets and sidewalks with ordinary care and within reasonable periods to see whether dangerous defects may exist therein.

As a matter of fact, some passers-by did discover the defect which caused the plaintiff’s injury, by actually stumbling on it; but, at the same time, it cannot fairly be said to have been so apparent as necessarily to attract the attention of the ordinary passer-by who did not come in contact with it. In our opinion the proper questions were: Did the condition of the gas box render the sidewalk dangerous ? Would the danger have been discovered upon an inspection of the sidewalk made with ordinary care ? Had it been in existence so long as that it ought properly to have been discovered by inspection ? These views seem in direct accord with the doctrine of the District of Columbia v. Woodbury, 136 U. S. 450, 463. Discussing and approving the charge in that case, Mr. Justice Harlan said : “The District authorities, within the scope of their opportunities and money, being under an obligation to exercise a general supervision of the streets, and to keep themselves informed about their condition, if a street remains in a dangerous condition so long that the authorities could not help, in the exercise of 'ordinary care and diligence, knowing the fact, and did not know it because they failed to exercise proper diligence, then the law imputes notice to them ; in other words, they have notice in contemplation of law, and that is constructive notice. No certain duration of a dangerous condition of a public highway operates of itself as a notice. The law does not require impossibilities of any person, natural or artificial; and it is impossible that all parts of all the streets should be under constant inspection. Consequently, it could not be maintained that at the instant an accident happens to the highway the authorities are charged with notice and held liable therefor if they do not instantly put it in repair. Every such case must be determined by its peculiar circumstances. The District would not be responsible-for damages arising from the bad condition of a street unless actual notice was brought to them of the condition of the street, or unless the street remained in an unsafe condition so long that they ought to have known of it if they exercised ordinary care.” See also Kunz v. City of Troy, 104 N. Y. 344, 349; Pomfrey v. Village of Saratoga, 104 N. Y. 459, 465; Davis v. Guilford, 55 Conn. 351, 357; Jones on Negligence of Municipal Corporations, 360 et seq.

(2) To say that children may not engage in innocent play upon the sidewalks adjacent to their homes, save at their own risk under all circumstances, would be to enforce a cruel and unreasonable rule against the many children in every large city who have no other place to seek fresh air and recreation in each other’s company.

Plaintiff had a perfect right to play on the sidewalk with her little companion, and there could be no negligence in so doing; and this was one of the uses of the sidewalk which defendant is bound to have anticipated. McGuire v. Spence, 91 N. Y. 303, 306; Kunz v. City of Troy, 104 N. Y. 344; City of Chicago v. Keefe, 114 Ill. 222, 226; Gibson v. City of Huntington, 38 W. Va. 177, 179.

(3) There was nothing in the evidence requiring submission to the jury whether there had been contributory negligence on the part of this five-year old child. Running in play along the sidewalk, as she had no doubt done often before, she happened to strike her foot against and to fall over the raised bricks and gas box. There was nothing else in the evidence. The question was submitted, however, at the suggestion of both parties. At the request of the defendant, the court charged the jury that if the plaintiff, by her own negligence, directly contributed to the injury, they should find against her. At the request of the plaintiff they were told that less discretion is required of a child of tender years than of an adult, and the degree of care required of the child is according to its maturity and •capacity. This was a proper qualification of the general rule that had been given on behalf of defendant. Railroad Co. v. Gladmon, 15 Wall. 401; B. & P. Railroad Co. v. Webster, ante p. 182.

3. The court did not err in refusing defendant’s eighth special prayer, to the effect that, as the burden of proof was on the plaintiff, if the “evidence is equally consistent with either the existence or the non-existence of negligence on the part of the defendant, their verdict must be for the defendant.” The jury had already been told, at the request of the defendant, that the burden of proof was upon the plaintiff to show the negligence of the defendant, and that this must be done by a preponderance of evidence; and this was repeated in the géneral charge. Nothing more was needed on this point. A jury that, could not have understood the meaning of the instructions given, would have obtained no new light from the prayer which the court denied.

4. It is unnecessary to discuss other special prayers granted and refused. The merits of the case are fully covered by those that have been considered. It may be added, however, that the general charge contained a plain statement of the law of the case, and, save in the particulars that have been noticed, was all that defendant could reasonably have asked.

Finding no error in the proceedings, the judgment appealed from will be affirmed, with costs to the appellee.