47 Colo. 209 | Colo. | 1910
delivered the opinion of tlie court:
The authorities agree that two classes of general duties are imposed upon a municipal corporation. One is governmental, and the municipality is not liable for negligence of employees occurring in the performance thereof. The other is private and corporate, and the municipality is liable for negligence of employees occurring in the performance thereof.—City of Denver v. Davis, 37 Colo. 370.
The authorities are practically agreed in placing certain general duties in the class 'that is governmental, and among those is the general duty of the preservation of the- public health. For this reason counsel for the city contends, with great earnestness and ability, that it ought to have been permitted to put in the evidence that was excluded. There is considerable conflict among the authorities when it
“The'overwhelming weight of authority is to the effect that the superintendence and care of the' streets -and alleys of a city, and all that directly pertains thereto, are peculiarly in the class of municipal duties, for the neglect of which the city, in its corporate character, is liable. ’ ’
The same thing was stated by the U. S. circuit court of appeals (8th cir.), in City of Denver v. Porter, 126 Fed. 288 at 293. Let it be inquired whether the detail of flushing the storm sewer in this case, though done solely for the preservation of health, was done'in the performance of the general duty of'preserving health, or done as one of the necessary details in the superintendence and care of the streets. This storm sewer was a subterranean channel constructed by the city to carry away the surface water which came upon the streets. Necessarily the street was so graded and constructed that
The evidence offered was, therefore, immaterial and properly excluded.
The defendant contends that inasmuch as it appears without contradiction, that the method adopted to flush this storm sewer had for years been employed for the same purpose all over the city without accident, the city was, as a matter of law, free from negligence. Many authorities are cited in support of this contention. It will serve no good purpose to review them. A reading of them discloses that the length of time a condition has existed, without accident, was not the only element which impelled the courts to declare freedom 'from negligence as a matter of law. Other conditions were present, which, with the lapse of time, more or less strong under the circumstances of each'particular case, governed the several courts in arriving at conclusions. In many, if not all, of the cases cited, an extraordinary combination of circumstances was necessary before an accident could happen, and in consequence the happening of the accident was a remote contingency not to be reasonably expected in the nature of things. In all of the authorities also, the condition out of which the negligence arose had been fixed at all times in the same place, for many years, and in some instances the plaintiffs knew of the condition. In the present case the hose was on the sidewalk once or twice a week, only, and then only for a short time
‘ ‘ On that day, after coming out of the shop, with my work, I walked along and when I got up near to the corner there, I looked around to see if my car was coming, and just within that time, as I looked around for my car something struck me and I fell, fell forward like this (illustrating).”
And again:
“You know I looked around for my car to see if my car was coming but I didn’t see the car; I just then slammed right down; something struck me and I fell.”
And on cross-examination:
“Q. Had you turned when you struck this object?
“ (The witness had testified she had turned her head to look for a car.)
“A. 'Yes, sir.
‘ ‘ Q. Just as soon as you turned ?
“A. Just as soon as I turned my head that struck me and I fell right down. ’ ’
And again:
‘ ‘ Q. What foot was it that struck the hose ?
“A. I don’t know; it struck them both.”
“She (the plaintiff) was coming down the street and I heard my partner tell her to look out for the hose, and the next thing she was down, and I ran from the hole I was flushing to help her up. Q. Did you hear him say anything to her about the hose? A. Tes, he told her to look out for the hose but I didn’t catch what she said because she was hollering about her hand. ’ ’
If she was not warned about the hose until she was crying out about her hand, which was injured, the warning came after she had fallen.' F'rom all this the jury may have concluded that, instead of plaintiff’s feet striking the hose as it lay inert upon the walk, as defendant contends, the hose was so manipulated or handled on the walk, by the man who apparently was handling it at one end, or it was so operated, that at the moment, without due warning to plaintiff, it was made to strike her, thus causing her to trip over it. A city is not an insurer of the safety of its streets, and it performs its whole duty when it exercises reasonable care to keep them in a reasonably safe and suitable condition for travel, as the defendant contends. Whether if has exercised reasonable care in a particular case is usually a question for the jury. The contention of defendant that the general method that it had adopted in flushing-storm sewers is, as a matter of law, the exercise of reasonable care, cannot be determined in this case, unless certain circumstances and the testimony of the plaintiff be entirely ignored, or be given a certain meaning to support defendant’s contention, while another meaning may be deduced therefrom. In this instance the question was properly submitted to the
The defendant also insists that under the evidence, the plaintiff was, as á matter of law, guilty of contributory negligence, but for which the accident would not have happened. It happened in the business part of the city, where many people were passing to and fro and where many things necessarily divert one’s eyes from the walk. There was evidence that the hose was the same color as the walk. The plaintiff turned her head to look for a street car. She said the hose struck her. It was her duty to exercise reasonable care and prudence when walking on the sidewalk. She, however, was not bound, at her peril, to keep her eyes fixed on the walk constantly. She had a right to believe that the walk was free from obstructions and to act with reasonable prudence upon such belief. Whether she did act with reasonable care and prudence, under the circumstances, was eminently a question for the jury.—Chicago v. Babcock, 143 Ill. 362; Lamb v. Worcester, 177 Mass. 82; Lattimore v. Union E. L. & P. Co., 106 S. W. 543.
The defendant insists that the case of Strutt v. Brooklyn & R. B. R. Co., 45 N. Y. S. 728, ought to be followed here. In that case plaintiff’s intestate tripped over a hose lying in plain sight on a wharf. Very few people were on the wharf at the time; the nearest was twenty feet away. It does not appear that there was anything occurring that necessarily diverted the eyes of the deceased from the path before him. The court held that the deceased was guilty of contributory negligence, and based its reversal of the judgment for plaintiff solely on that ground. In the case at bar, however, the attention of the plaintiff was necessarily diverted from the sidewalk, by looking for a car which she desired to
In the case of Lattimore v. The Union E. L. & P. Co., supra, the testimony, so far as the contributory negligence of plaintiff are concerned, was somewhat similar, though less favorable to the plaintiff than 'the testimony in the case at bar, and the court held that whether or not the plaintiff was guilty of contributory negligence “was under the facts palpably a question to be determined by the jury. ” It is true that in the Lattimore case, the hose was stretched taut across the walk and from four to eight inches above it, but - that fact could make no difference -on the question of contributory negligence of plaintiff, for the hose could at least have been as readily seen stretched taut across and near the walk as it could be if lying on the walk. The question of negligence of this defendant and the contributory negligence of this plaintiff were resolved against the contention of defendant by the court below, in denying a motion for nonsuit, and by the jury in its verdict. Certain observations were made by this court concerning negligence and contributory negligence in Lord v. Pueblo S. & R. Co., 12 Colo. 396. It was there said that these questions are generally for the jury whose province should not be invaded by the courts, except
And now, upon motion for rehearing, after again carefully considering the briefs of the parties and the testimony, this court feels that, considering this case in the most favorable light in which it may be reasonably considered in behalf of the defendant, under all the facts and' circumstances, there is room for a substantial difference of opinion in the consideration of the evidence on the question of negligence, and that there is a reasonable doubt as to the inference to he drawn from all the facts and circum- ■ stances on that question, and for these reasons the questions of negligence .and contributory negligence were rightly submitted to the jury under proper instructions, and their verdict is binding here.
The former- opinion will he withdrawn and this opinion filed in lieu thereof; the motion for rehearing will be denied and the judgment of the lower court will stand affirmed. Affirmed.
Rehearing denied.