By the Court.
Berry, J.
This action is brought to recover damages for personal injuries sustained by plaintiff in falling through a defective sidewalk on the west side 'of Wabasha street, in the city of St. Paul, just above Eleventh street. Ch. 26 (defendant’s charter,) Sp. Laws 1868, in section 1, sub-chapter 7, enacts that “ the common council shall have the. care, supervision and control of all public highways, bridges, streets, * * * within the limits of said city, and shall cause all streets which may have been opened and graded, to be kept open and in repair.” “ The' general rule is that a municipal corporation charged with the duty of keeping its streets in repair, and .of exercising a general oversight in regard to their condition and safety, is bound to maintain them free from all defects or obstructions which by the use of ordinary vigilance and care it can detect and remove.” Cleveland vs. City of St. Paul, 18 Minn. 279, and cases cited.
That this rule is applicable to sidewalks, which are nothing but parts of streets, see Moore vs. Minneapolis, 19 Minn. 300; Manchester vs. Hartford, 30 Conn. 118; Bloomington vs. Bay, 42 Ill. 503.
The appellant claims that there was no evidence in this case to show that the city was bound to take care of Waba-l sha street and keep it in repair; no evidence that it was ever “ accepted, or worked, or brought, under the care of the cityj or under its control, or officially opened by it.” In view o: [119]*119the patent and notorious fact that this street is one of the best improved and most thickly settled and most frequented thoroughfares in the city, upon which are situated the court house, post office, custom house, the capítol, several churches and very many places of business and private residences, it would be an outrage to treat a claim of this kind with any technical indulgence.- While we do not discover such clear and distinct testimony as to the character of the street as should have been adduced in the exercise of due care," the plaintiff testified that it “ is a public street of St. Paul,” and the same thing is, we think, admitted by. the pleadings when properly construed. But what under the circumstances of this case we hold to be decisive, is the fact that it nowhere appears that any claim of the kind referred to was made until the cause reached this court, in connection with the further fact that the court below was permitted, without objection or exception, to instruct the jury upon the basis and to the effect that Wabasha was a street, which the city was by its charter bound to use reasonable diligence to keep ¡in good repair. The case was, then, evidently tried upon the theory that such was the character of the street in question, and we presume that formal proof of facts establishing such character was dispensed with, upon the understanding that [there was no dispute in regard to the same. Upon these grounds we shall take it as established that Wabasha street ¡was, and for a considerable time had been, a public street of pt. Paul, of which by the charter provision before quoted Ihe common council have the care, supervision and control, Imd which they are bound to cause to be kept open and in lepair.
I The complaint charges that “ defendant did not keep said, jidewalk at said place in good order and repair, but on the lontrary caused the same to be improperly and unsafely con[120]*120structed and allowed the boards to be loose on the sleepers, and nnnailed and to rot, and while the same was in such condition by the gross negligence of said defendant, the said plaintiff did * * * without any negligence or fault of plaintiff, but solely through the said condition of said sidewalk as aforesaid, and solely through the negligence of said city in not properly and safely constructing said sidewalk, and allowing said boards to be loose and unnailed and to rot as aforesaid, while he, said plaintiff, was lawfully walking over said sidewalk, step on a loose board of said sidewalk, which sunk under plaintiff’s foot, and whereby plaintiff’s foot went down below said sidewalk, and his ankle was sprained,” &c.
No evidence was offered to show that the sidewalk in question was constructed or caused to be constructed by the defendant. For this reason defendant argues that plaintiff did not make out a case. But the charter provision before quoted does not make the duty of the common council to supervise and take care of sidewalks, (as parts of streets,) and to cause them to be kept in good repair, dependent, in anyi degree, upon the. fact, that they were constructed or caused to be constructed by the city. The duty is by the language of the charter imposed irrespective of any such consideration. The object is to secure the convenience and safety of person: having occasion to use the street. To relieve the city of thej obligation to see that a sidew.alk is in safe condition whenever it was not constructed by or at the instance of the city: would be to lose sight of this object altogether in such case¡ It was, therefore, unnecessary to show that the city constructei or caused to be constructed the sidewalk in question, Bloom ington vs. Bay, supra. In the language of the charge giveil to the jury, and in accordance with the principle of thi general rule hereinbefore laid down, the defendant under it: [121]*121charter was bound to exercise reasonable care in keeping the streets in a safe condition for public travel, which requires that it should use reasonable diligence in ascertaining and remedying defects in streets, and in sidewalks as parts thereof, Moore vs. Minneapolis, 19 Minn. 300.
After instructing the jury to this effect, the court proceeded with its charge as follows, viz.: “ It has been argued by the city attorney, that in order to charge the defendant with negligence, notice should have been given to the city authorities of the defective state of the sidewalk. Upon this point I charge you, that if the defective condition of the sidewalk was the result of their own negligence, no such notice was necessary. There may be cases when it is necessary for the plaintiff to show that the city authorities had notice. But if, as in this case, they are bound by the charter to exercise a care and supervision over the streets, they cannot allow sidewalks to become old, and rotten, and dangerous, and then defend against the consequence by alleging want of notice. This is supposing' that the dangerous condition of the sidewalk arose from neglect. If, however, it did not arise from neglect, then notice was required. As to the notice required, it was not necessary to prove that the authorities had been actually told of the defect. If the fact was open and notorious, that was sufficient.” The defendant excepted to this part of the charge, but we think the exception must be overruled. The testimony, and the only testimony in the case'to which the instructions thus excepted to were applicable, was that of the plaintiff himself and was as follows,.viz.: ‘About the first of June last I was going up Wabasha street; * the first I knew a plank went down under my foot and prained my ankle; * * I examined and found the plank oose ; the nails were out; I did not notice it before at any ime; I noticed that the' sidewalk there was rotten; this [122]
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By the Court.
Berry, J.
This action is brought to recover damages for personal injuries sustained by plaintiff in falling through a defective sidewalk on the west side 'of Wabasha street, in the city of St. Paul, just above Eleventh street. Ch. 26 (defendant’s charter,) Sp. Laws 1868, in section 1, sub-chapter 7, enacts that “ the common council shall have the. care, supervision and control of all public highways, bridges, streets, * * * within the limits of said city, and shall cause all streets which may have been opened and graded, to be kept open and in repair.” “ The' general rule is that a municipal corporation charged with the duty of keeping its streets in repair, and .of exercising a general oversight in regard to their condition and safety, is bound to maintain them free from all defects or obstructions which by the use of ordinary vigilance and care it can detect and remove.” Cleveland vs. City of St. Paul, 18 Minn. 279, and cases cited.
That this rule is applicable to sidewalks, which are nothing but parts of streets, see Moore vs. Minneapolis, 19 Minn. 300; Manchester vs. Hartford, 30 Conn. 118; Bloomington vs. Bay, 42 Ill. 503.
The appellant claims that there was no evidence in this case to show that the city was bound to take care of Waba-l sha street and keep it in repair; no evidence that it was ever “ accepted, or worked, or brought, under the care of the cityj or under its control, or officially opened by it.” In view o: [119]*119the patent and notorious fact that this street is one of the best improved and most thickly settled and most frequented thoroughfares in the city, upon which are situated the court house, post office, custom house, the capítol, several churches and very many places of business and private residences, it would be an outrage to treat a claim of this kind with any technical indulgence.- While we do not discover such clear and distinct testimony as to the character of the street as should have been adduced in the exercise of due care," the plaintiff testified that it “ is a public street of St. Paul,” and the same thing is, we think, admitted by. the pleadings when properly construed. But what under the circumstances of this case we hold to be decisive, is the fact that it nowhere appears that any claim of the kind referred to was made until the cause reached this court, in connection with the further fact that the court below was permitted, without objection or exception, to instruct the jury upon the basis and to the effect that Wabasha was a street, which the city was by its charter bound to use reasonable diligence to keep ¡in good repair. The case was, then, evidently tried upon the theory that such was the character of the street in question, and we presume that formal proof of facts establishing such character was dispensed with, upon the understanding that [there was no dispute in regard to the same. Upon these grounds we shall take it as established that Wabasha street ¡was, and for a considerable time had been, a public street of pt. Paul, of which by the charter provision before quoted Ihe common council have the care, supervision and control, Imd which they are bound to cause to be kept open and in lepair.
I The complaint charges that “ defendant did not keep said, jidewalk at said place in good order and repair, but on the lontrary caused the same to be improperly and unsafely con[120]*120structed and allowed the boards to be loose on the sleepers, and nnnailed and to rot, and while the same was in such condition by the gross negligence of said defendant, the said plaintiff did * * * without any negligence or fault of plaintiff, but solely through the said condition of said sidewalk as aforesaid, and solely through the negligence of said city in not properly and safely constructing said sidewalk, and allowing said boards to be loose and unnailed and to rot as aforesaid, while he, said plaintiff, was lawfully walking over said sidewalk, step on a loose board of said sidewalk, which sunk under plaintiff’s foot, and whereby plaintiff’s foot went down below said sidewalk, and his ankle was sprained,” &c.
No evidence was offered to show that the sidewalk in question was constructed or caused to be constructed by the defendant. For this reason defendant argues that plaintiff did not make out a case. But the charter provision before quoted does not make the duty of the common council to supervise and take care of sidewalks, (as parts of streets,) and to cause them to be kept in good repair, dependent, in anyi degree, upon the. fact, that they were constructed or caused to be constructed by the city. The duty is by the language of the charter imposed irrespective of any such consideration. The object is to secure the convenience and safety of person: having occasion to use the street. To relieve the city of thej obligation to see that a sidew.alk is in safe condition whenever it was not constructed by or at the instance of the city: would be to lose sight of this object altogether in such case¡ It was, therefore, unnecessary to show that the city constructei or caused to be constructed the sidewalk in question, Bloom ington vs. Bay, supra. In the language of the charge giveil to the jury, and in accordance with the principle of thi general rule hereinbefore laid down, the defendant under it: [121]*121charter was bound to exercise reasonable care in keeping the streets in a safe condition for public travel, which requires that it should use reasonable diligence in ascertaining and remedying defects in streets, and in sidewalks as parts thereof, Moore vs. Minneapolis, 19 Minn. 300.
After instructing the jury to this effect, the court proceeded with its charge as follows, viz.: “ It has been argued by the city attorney, that in order to charge the defendant with negligence, notice should have been given to the city authorities of the defective state of the sidewalk. Upon this point I charge you, that if the defective condition of the sidewalk was the result of their own negligence, no such notice was necessary. There may be cases when it is necessary for the plaintiff to show that the city authorities had notice. But if, as in this case, they are bound by the charter to exercise a care and supervision over the streets, they cannot allow sidewalks to become old, and rotten, and dangerous, and then defend against the consequence by alleging want of notice. This is supposing' that the dangerous condition of the sidewalk arose from neglect. If, however, it did not arise from neglect, then notice was required. As to the notice required, it was not necessary to prove that the authorities had been actually told of the defect. If the fact was open and notorious, that was sufficient.” The defendant excepted to this part of the charge, but we think the exception must be overruled. The testimony, and the only testimony in the case'to which the instructions thus excepted to were applicable, was that of the plaintiff himself and was as follows,.viz.: ‘About the first of June last I was going up Wabasha street; * the first I knew a plank went down under my foot and prained my ankle; * * I examined and found the plank oose ; the nails were out; I did not notice it before at any ime; I noticed that the' sidewalk there was rotten; this [122]*122plank rested on three sleepers; I think, however, there was no sleeper tinder it when it went down; it seemed to be rotted off; it was not nailed, and several others were not nailed, and I noticed, several others loose at the time; there might have been four or five ; I think it was something like a foot from the top of the plank walk to the ground where my foot went down, and that naturally threw me forward, and turned my foot a little.” The words, “ it seemed to be rotted off,” in the connection in which they occur, would appear to refer to the plank, and if so they would support the specific allegation of the complaint in that particular. But if, as the counsel on both sides seem to think, these words refer to the sleepers, even then they go to sustain the general allegation that defendant did not keep the sidewalk “ in good order and repair,” which would, we think, be sufficient in the absence of any objection to the introduction of the testimony. Or if upon strict construction it should bel claimed, that the general allegation was so far narrowed by the specific allegation following that nothing could be proved under the former, which could not under the latter, we see no reason why the jury might not be warranted in inferring] that the reason why the planks were loose and unnailed, wai that the sleepers being rotten, there was nothing there t which the planks could be nailed. Ih addition the plainti: testified, as we have seen, “ that the sidewalk there was rot' ten.” There appears to have beeD no cross-examination o: the plaintiff as to the character and condition of the side! walk, nor any testimony in the case from the mouth of an; other witness in regard to the same. Why the trial took thi course we c£tn only conjecture. Perhaps it was because i was thought that a cross-examination or additional testimon; would only damage the defense. Perhaps because there wa| no disposition to deny the facts as stated by the plaintiff, o [123]*123that the sidewalk was in dis-repair. All things considered, although it is to be regretted that the testimony was not more explicit one way or the other, we are unable to say that the jury were not warranted in coming to the conclusion that the plaintiff’s injury was occasioned by the rotten condition of the plank, which gave way beneath him, or by the fact that the planks were loose and unnailed in consequence of the decay of the sleepers. Proof that either of these causes brought about the injury complained of would sufficiently satisfy the material allegations of the complaint, and would make the foregoing instructions of the court applicable to the case. And the same remark may be made in regard to the proof that the sleeper was rotten, if the view before suggested as to that proof is correct. We are further of opinion that the instructions referred to were not only applicable to the facts, but that they were substantially and practically correct in point of law under the general rule mentioned in the early part of this opinion. The “ care, supervision and control” of a sidewalk being imposed upon defendant, no argument is needed to establish the proposition, that such care and supervision require notice to be taken of the certain tendency of wood sidewalks to decay. This tendency is the result of natural causes, whose operation is so constant, familiar and common as to be known to everybody. To call that care and supervision which did not take into account this tendency to decay, would be a contradiction in terms. Such care and supervision would be a positive neglect of legal duty. See Manchester vs. Hartford, supra; Barton vs. the City of Syracuse, 36 N. Y. 58; McCarthy vs. Syracuse, 46 N. Y. 194; 30 Conn. 118. It is to neglect of this kind that we understand the court to refer in the first branch of the instructions under consideration, a neglect to take notice of and act upon that of which everybody has notice. The idea of [124]*124notice is, therefore, included in such neglect, so that no other notice of a defect in a sidewalk arising from natural decay is necessarily required ; neither an actual notice, nor such con • structive notice as may arise from the open and notorious character of a defect. While the evidence in this case was not so clear and explicit as it seems to us it might have been made, it cannot be said in view of the fact that Wabasha was and long had been emphatically a public street, that there was not evidence from which the jury could reasonably and properly infer such a failure to care for and supervise this sidewalk as constituted positive neglect of legal duty on the part of defendant of the kind above referred to — a neglect from which the defective condition of the sidewalk and plaintiff ’s injury resulted, and for which defendant should, on familiar principles, be held responsible. Bloomington vs. Bay, supra.
As to the latter branch of the instructions under consideration, to-wit, that in which the jury were instructed that notice was necessary under certain circumstances, it was clearly correct in the abstract. See Cleveland vs. St. Paul, supra ; Moore vs. Minneapolis, supra ; Lindholm vs. St. Paul, 19 Minn. 245. If in considering upon their verdict the jury reached this branch of the instructions, then it was for them to determine whether upon the testimony as to the condition and appearance of the sidewalk, its defects were open and notorious. As to this question, while it must be admitted that the testimony was exceedingly meagre, we think there was something for the consideration of the jury.
The last point made by the city attorney is, that the defendant is not liable for the neglect of the street commissioner, who is charged under the charter to keep the streets in repair, because he is “ an independent officer, deriving his authority from the election by the people, and not from” the [125]*125defendant. We find no support for this proposition in the authorities cited, and can discover no ground of principle upon which it can be sustained. It seems to us that the street commissioner in his oversight of the streets is simply the agent through whom the common council, to some extent, exercise the care and supervision of streets imposed upon the city as a corporate duty; and such commissioner is expressly made a subordinate of the council by section 9, sub-chapter 3 of the city charter, ch. 26, Sp. Laws 1868 ; Dillon on Corporations, & 772; Mayor of New York vs. Fruze, 3 Hill, 612. If the manner of his election is of any importance, we do not see any reason why his election 'by the electors of the city should make the city, as a corporation, any less responsible for his act, than if he had been elected by the common council.
Judgment affirmed.