Freer v. City of Eugene

Oregon Supreme Court

Freer v. City of Eugene

111 P.2d 85, 166 Or. 107, 1941 Ore. LEXIS 60

CourtOregon Supreme Court

DecidedJanuary 23, 1941

StatusPublished

Cited by3 cases

This text of 111 P.2d 85 (Freer v. City of Eugene) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Freer v. City of Eugene, 111 P.2d 85, 166 Or. 107, 1941 Ore. LEXIS 60 (Or. 1941).

Pincite

Opinion

BELT, J.

Plaintiff, a woman 38 years of age, brings this action to recover damages in the sum of $15,000 for personal injuries which she alleges were caused by falling on a dangerous and defective sidewalk constructed and maintained by the defendant municipality. The gravamen of the complaint is that the city failed to keep the sidewalk in a reasonably safe condition for the use of pedestrians.

The defendant denied the charge of negligence and alleged contributory negligence as an affirmative defense.

The cause was submitted to a jury and a verdict returned in favor of plaintiff in the sum of $200. Plaintiff moved for a new trial on the ground of inadequacy of damages. Upon refusal of the court to grant a new trial, the plaintiff appealed from the judgment. Defendant city cross appeals, asserting that there is no evidence tending to establish liability against it. There is a concrete sidewalk five feet wide on the south side of 10th avenue, between Washington and Jefferson streets, in the city of Eugene. This city walls runs in an easterly and westerly direction. Its inner edge is one foot from the property line. Intersecting such walls at right angles is a private sidewalls running northward from the residence of Mr. Bichardson and his wife at 512 Tenth Ave. West. These two walks were originally constructed on the same plane. Subsequently, however, the roots from a tree in the parking strip grew under the city sidewalk, causing the inner edge of a concrete block thereof to be elevated about two inches above the level of the connecting private walk.

*109 At about 11 o’clock at night on May 3,1940, plaintiff was leaving the home of Mr. and Mrs. Richardson after making a social call. She started toward her husband’s automobile parked across the street, walking north along the private sidewalk. In stepping onto the city concrete sidewalk, she struck her toe against its abrupt edge at approximately its highest elevation, thereby causing her to fall and fracture her right hip. It was dark and a drizzly rain was falling. Plaintiff was unfamiliar with the premises as she had never before used such entrance to the Richardson home. The city had ample knowledge of the condition of the walk.

The photograph on following page will aid in visualizing the existing conditions at the place where this accident occurred.

That it is the duty of a municipality to maintain its sidewalks in a reasonably safe condition for the use of pedestrians is well settled. The city, however, is not an insurer against injury caused by every trivial defect in a sidewall? and the mere happening of an accident in and of itself does not speak of negligence. These legal principles are so fundamental that citation of authority is not deemed necessary.

The books are replete with cases involving injury to pedestrians while traversing a sidewalk maintained by a municipal corporation and under its control. See exhaustive note in 119 A. L. R. 161.

In the instant case, however, we are not concerned with the duty of the city to such pedestrians, for the plaintiff was not injured while so using the sidewalk. Plaintiff’s injury occurred while she was leaving private property to go onto a sidewalk in the street. Was it the duty of the defendant city to keep its sidewalk in such repair that a pedestrian could with rea *111 sonable safety have access thereto from private property? Was it the duty of the city to provide reasonable means of access from abutting property to walks in the street? These are the vital questions in this case. Actionable negligence must be predicated upon the breach of a legal duty. Of course, if there is no breach of duty on the part of the city in reference to keeping its walks reasonably safe for pedestrians who go onto the same from private property, the judgment can not be sustained. It is observed from the above photograph that any person in the exercise of due care could walk along the sidewalk with reasonable safety. It was reasonably safe for the use of the general public.

*110

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