10 Colo. 375 | Colo. | 1887
It was the duty of the municipal authorities of Denver to exercise ordinary care in keeping the sidewalks free from defects and obstructions. The conclusion reached in City v. Dunsmore, 7 Colo. 328, with reference to streets, applies with equal fitness to the subject of sidewalks, and the reasons there given need not be restated. A failure to perform this duty might lay the foundation of municipal liability. But since the city did not construct the sidewalk, coal hole or cap here in question, and the accident was not occasioned by any act of the city, its officers or agents, before plaintiff could recover damages from it for the injury sustained, he was required to show that the corporation had notice of the defective cap; also that it was in possession of such notice a sufficient length of time before the accident to have cured the defect and prevented the injury. Such notice might have been either actual or constructive.
The ninth instruction given in the case announces two propositions on the subject of notice: First, that the knowledge, concerning defects like the one in question, of the police of the city, is not actual notice to the corporation; second, that such knowledge, if gained in pursuance of the officer’s duties and employment, may be the means of knowledge, so as to charge the municipality with constructive notice. In our judgment both propositions are wrong. Whether a certain matter is in the line of a particular officer’s employment is to be determined by construction of the statute or ordinance prescribing his duties; hence such determination is a question of law. Without discussion, but not without careful examination.
There seem to be but two ways in which a municipal corporation can be charged with constructive notice of defects in its sidewalks so as to be held liable forinjuiies occasioned thereby; there being no municipal responsibility in the original construction, and no affirmative municipal acts through which the defects are produced: First. Where an exercise of ordinary care on its part involves the anticipation of defects that are the natural and legitimate result of use and climatic influences. A neglect of the proper officer to make a sufficiently frequent and
But it is conceded by both parties to this case that the
We are not permitted to hold that the errors of the court in the ninth instruction were without prejudice to appellant. Though, under a proper statement of the law, the jury might perhaps have found the city charged with actual notice, it is not for us to say that such must have been their conclusion. It was their province to determine whether or not the chief of police did have personal knowledge of the defective cap; and also whether such knowledge, if found to exist, had been acquired a sufficient length of time previous to the accident. 2 Dill. Mun. Corp. § 1026. It does not necessarily follow, because the jury, under the law as submitted to them, found from the conduct and declarations of Lomery and others that the city had means of knowledge, and therefore constructive notice, that, under "a proper instruction, they would have Lomery possessed of adequate information for a sufficient period to charge the city with actual notice.
For the errors mentioned, judgment must be reversed, and it is unnecessary to discuss the remaining assignments.
Reversed.