2 Colo. App. 534 | Colo. Ct. App. | 1892
after stating the facts, delivered the opinion of the court.
The open, unprotected excavation, or area way, in the sidewalk between the front street line of the building and the street, of the character established by the evidence, was dangerous to life and limb of those who traveled the street, and such condition had existed so long that the city authorities had full knowledge of it. Not to have the knowledge, imputed such negligence as to render the city liable. By its charter the city is liable for such neglect to an individual injured, the owner of the property and the lessees are also liable.
It is difficult to arrive at the intention of the legislature, or proper legal construction of the paragraph. Though blindly expressed, it would seem that, where the injury was received through the negligence of a third party, and there was no knowledge of the danger, nor negligence on the part of the city, the party directly causing the injury should be joined, and if judgment was obtained, the party directly responsible should be held primarily liable and the city’s liability should be secondary. It is very doubtful whether the clause can have any application in a case like the present, where the city, the property owners and lessees are all equally culpable. To so construe it, at once raises the question whether or not by reason of its departure from, and contravention of, well-settled principles of common law, and by reason of its limitations and restrictions upon the plaintiff’s right to bring and maintain an action, it could be regarded as constitutional. Without determining that question, it can be safely said that it was never the intention of the legislature to compel a plaintiff to prosecute and maintain three different suits in one against three sets of tort-feasors, all and each equally liable; nor can it be construed, as was attempted in this instance, to impose upon the plaintiff the burden of establishing his right of action against all the parties, and at the same time adjudicate the liability and settle the equities
On appeal to this court for review, the only questions that can be considered are those in regard to the legality of the judgments obtained by Soloman against each appellant respectively ; hence, the only alleged errors that can be considered are those that go to the issues between Soloman and the different defendants. In each assignment of errors, appellants respectively assign all the instructions given upon the prayer of each of their codefendants, not only requiring the plaintiff (appellee) to maintain the correctness of those going to the issues in his own case but those given upon side issues between the different defendants. In the determination of the case these supposed errors, only of importance to the defendants, must be disregarded.
The defense pleaded and, in common, relied upon by all the defendants, was the negligence of the plaintiff. Upon the trial, extreme latitude as to evidence to establish such negligence upon his part as would exonerate the defendants was allowed. In regard to the hour the injury occurred, the amount of light, the knowledge of the premises and of the pits by the plaintiff, etc., an immense amount of testimony was directed. All the facts possible were before the jury. Elaborate instructions were given to the jury at the instance of the plaintiff in regard to the contributory negligence of the plaintiff. A careful examination of the charge fails to show it objectionable or erroneous. At the instance of the defendant, the City of Denver, numerous instructions were asked upon the question of negligence, eight of which were
If such defense could prevail, the city might exonerate itself from liability by showing the other side of the street or the next parallel street safe and unobstructed. Those asked or refused were either covered by the instructions given or were properly refused by the court, not being warranted by the law. Instructions upon the same issue asked by other defendants were properly rejected, the same ground having been covered, and the subject more than exhausted, by the instructions given.
It is also insisted by all the defendants that the court erred in refusing a nonsuit on the ground of plaintiff’s contributory negligence. It is a well settled rule of law in all this class of cases that, in order to justify the court in withdrawing the case from the jury, the facts of the case should not only be undisputed, but the conclusion to be drawn from those facts indisputuble. 2 Thomp; on Neg. 1236.
Cases in which the question can be withdrawn from the jury are rare. Railroad Co. v. Stout, 17 Wal. 657; Railroad Co. v. Van Steinburg, 17 Mich. 121; Briggs v. Taylor, 28 Vt. 183.
It is only where the circumstances of the case are such that the standard of duty is fixed and the measure of duty defined bjr law, and is the same under all circumstances, that the court can withdraw it from the jury. 2 Thomp. Neg., supra; McCully v. Clarke, 40 Pa. St. 399; Railroad Co. v.
To leave the pits or man-traps unprotected, and for such great length of time, was clearly in violation of law, and the court could, as a conclusion of law, declare defendants guilty of negligence, but the accidental falling of a person into the trap cannot' be so declared. In all such cases the question of contributory negligence is for the jury, to be determined from the facts and peculiar attendant circumstances of each case. See 2 Thomp. on Neg. 1178, and cases cited in notes ; Whart. on Neg. 420, and notes ; Redfield on Railways, 231; Railroad Co. v. Stout, (supra;) Quimby v. Railroad, 23 Vt. 387; Langhoff v. Railway Co., 19 Wis. 516 ; Weed v. Ballston Spa, 76 N. Y. 329; Whitaker v. West Boylston, 97 Mass. 273 ; Patterson v. Wallace, McQueen’s H. L. Cas. 748; Briggs v. Taylor, (supra;) Railroad Co. v. Steinburg, (supra).
It is earnestly contended in the argument of counsel for the city that the action could not be maintained for the want of a proper notice on the part of the plaintiff. It is provided by sec. 4, art. 13 of the city charter of 1889: “ Before the city of Denver shall be liable for damages to any person injured upon any of the streets, avenues, alleys or sidewalks of the city, the person so injured, or some one in his behalf, shall give the mayor or city council notice in writing of such injury, within thirty (30) days after the same has been received, stating in such notice when, where and how the injury occurred and the extent thereof.”
It is alleged in the complaint, “ That notice of said accident, and of the intention of the plaintiff to bring this suit was duly served upon the mayor of Denver, September 13,1889.” The following appears in defendant’s answer: “ Admits that a notice of the intention of plaintiff to bring suit was served upon the mayor of the city of Denver on September 13, 1889.” The counsel of defendant says in argument: — “ The giving of this charter notice is indispensable ; no action can be maintained against the city until a written notice containing all the charter requirements has been duly served,
In support of this conclusion there are many pages of argument and a citation of twenty-seven authorities. This clearly shows the painstaking and careful industry of counsel. Conceding the proposition, and admitting the applicability of all the authorities cited, how does it affect the case? It is alleged that the notice was given — the fact is admitted. If the notice was not in accordance with the law, the allegation should have been traversed, not admitted. A notice failing to comply with the statute is no notice. It was not reached by the demurrer, for a demurrer only goes to what appears in pleading. The notice was not set out. There is no rule of law requiring a pleader to incorporate his evidence into his pleading. Had an issue been made upon it, proof would have been necessary; then the question of sufficiency could have been determined. The admission in answer admits the legal sufficiency of the notice ; hence, there was no issue requiring proof — nothing in regard to it occurred upon the trial. Its sufficiency was a question of law, — the paper was not before the lower court, nor is it before this. No exception of any kind was saved in connection with it, nor any error assigned upon any action of the court in regard to it. There is no action of the lower court to review, and neither that court nor this have or has had an opportunity of passing upon its legal sufficiency.
It is contended also in argument that the street commissioner of the city of Denver was a necessary party, and not having been joined, the judgment was erroneous. We do not think he was a necessary party, but do not find it necessary to determine the question. Neither in pleading, nor upon the trial, was the question of the necessity of joining him raised. ■ Such claim first appears in the instructions asked of the court, and error is predicated upon the court’s refusal to instruct. The failure to join him or any other defendant should have been taken advantage of in apt time, in proper manner, in the court below, so that the omission
Of all the authorities presented not one is in point,: — they are each and all, to the effect that a public officer, upon whom is cast, by virtue of his office, certain duties, may be held personally liable to an injured party for damages sustained by reason of the neglect of legal duties imposed. Admit it. The question is not whether the plaintiff could have maintained an action against the street commissioner, but whether, failing to join him, vitiated a judgment against others who were also clearly liable. Upon this question, the only one involved, no authorities whatever are presented.
Counsel for defendant Middleton insist that she was not the legal owner of the premises, but that the title was in her son as trustee. It is clearly shown that she was actually the owner, having the equitable and beneficial title and receiving the income. This in actions of this character is sufficient; a tangible and defined interest united with the control would render her liable. A nominal trustee, with no beneficial interest and receiving no income from it, could hardly be required to keep property in repair at his own expense. It is urged that the court erred in submitting to the jury the question of ownership — that it was a question of law to be decided by the court, etc. Technically this was correct, but an examination shows that the question was submitted to the jury at her request. The first instruction given by the court, at her request, submitted the question of ownership to the jury. After clearly stating the legal situation of a trustee to the property, it continues: “ If you believe from the evidence that the defendant, Middleton, was not-the owner of the whole, or an interest in the premises upon which the ac
The case of Union B. Manf. Co. v. Lindsay, 10 Brad. (Ill.) 583, cited and relied upon in support of the above proposition, fails to sustain it. First, there was no such statute as here compelling the joining of all parties. Plaintiff could elect. Second, the general exception there stated places this case outside the general rule. The court says: “ The general rule of law is that the occupant, and not the owner, as such, is responsible for injuries received in consequence of failure to keep the premises in repair. To this general rule the authorities recognized these exceptions: First. Where the landlord has, by an express agreement between the tenant and himself, agreed to keep the premises in repair, so that, in case of a recovery against the tenant, he would have his remedy over against the landlord. There, to avoid circuity of action, the party injured by the defect and want of
That the owner in this instance was liable, regardless of-the statute, under the second exception. See 1 Thomp. on Neg. 817, and cases cited; Gridley v. Bloomington, 68 Ill. 47; Chicago v. O'Brennan, 65 Ill. 160.
The argument- of counsel for the defendant, Lesher, is devoted entirely to the contributory negligence of plaintiff. • The brief presented is able and exhaustive of the question discussed.
Further discussion in addition to what has been said above is unnecessary. Numerous errors are assigned on the part of Lesher, but do not appear to be relied upon by counsel, except those pertaining to the question of plaintiff’s negli-. gence. We have, however, examined them.
Our conclusion is that no sufficient error occurred to warrant a reversal, and that the judgment should stand as entered.
Affirmed.