City of Wabasha v. Southworth

54 Minn. 79 | Minn. | 1893

Mitchell, J.

If the findings of fact were justified by the evidence, there is nothing new or doubtful in the law governing this case.

In order to entitle the plaintiff to recourse on the defendant for the money which it had paid in settlement of the claim of Schinzel for injuries sustained by reason of the defective sidewalk, it was necessary to establish—First, that tne city was liable to Schinzel by reason of negligence in the performance of its duty to the public to keep its streets in safe condition, and, second, that defendant was also liable to Schinzel by reason of his negligence in constructing or maintaining the nuisance in the street which caused the injury. If these two facts were established, then the right of the city to recourse against the defendant is not, and could not successfully be, denied.

There is nothing in the point that the mode of procedure prescribed by the city charter (Sp. Laws 1889, ch. 13, subch. 7, § 16) is exclusive, and that the city’s only remedy was to let the claim of Schinzel go to judgment against both it and Southworth, pay the judgment, and then enforce it against Southworth. This, like similar provisions in other charters, is designed to aid and not to hinder cities in dealing with such claims, so that the liability of a third party may be determined and enforced in the same action in which that of the city is determined and enforced. The only effect of the city’s settling the claim .without such judgment was that the questions upon which the liability of Southworth depends were left open. See Jones v. City of Minneapolis, 31 Minn. 230, (17 N. W. Rep. 377;) Clark v. City of Austin, 38 Minn. 487, (38 N. W. Rep. 615;) Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, (16 N. W. Rep. 698.)

The court found that the city might, by the exercise of ordinary care, have known of the unsafe condition of the sidewalk in time to repair it before the accident occurred. This finding, which is not assailed, settles the question of the city’s liability to Schinzel.

Passing over the finding to the effect that this hatchway in •the sidewalk was originally constructed in a negligent and unsafe manner, (which we think was justified by the evidence,) the court further found that the defendant knew, or by the exercise of ordinary care might have known, of the existence and character of this hatchway and covering at the time he purchased the property; also, that for more than a year prior to the accident he had negligently suffered and permitted this covering or trapdoor over the hatchway to become decayed and insecurely fastened and supported, whereby the sidewalk over the excavation underneath became and was unsafe for ordinary travel. That the first part of this finding was supported by ■ the evidence is beyond question. Indeed, we think the evidence was such as to require a finding that defendant had actual knowledge of the existence and character of this hatchway as long ago as the date of his purchase of the undivided half of the abutting property in 1873. Nor in our opinion is there any more room for doubt as to the sufficiency of the evidence to justify the latter part of the finding. The defendant maintained this hatchway in the street by allowing it to remain there, with knowledge of its existence. The fact that he had not used it for some years is immaterial, and the claim that he had relieved himself from responsibility by abandoning it is without merit Having been constructed in the street for the convenience of his abutting property, the only way he could relieve himself from the duty of keeping it in repair was to restore the street to its original condition by filling up the excavation and replacing the stringers under the sidewalk. Nichols v. City of Minneapolis, 33 Minn. 430, (23 N. W. Rep. 868.)

The negligence of the defendant in the maintenance of this hatchway or cellar way we place upon his lack of ordinary care in not taking reasonable precautions to keep it in safe condition, and not upon the ground that all excavations, basement or cellar ways, scuttles, and the like, made or constructed in the street without affirmative municipal license, are per se unlawful, and nuisances. Numerous reported cases, both in this country and England, show that it has been assumed, time out of mind, in accordance with a custom of long standing, that, even in the absence of any express license, this is a legitimate use of the street for the convenience of abutting property, provided it be exercised in a proper and safe manner, and consequently that the property owner is not an absolute insurer against all injuries resulting from the existence of such things in the street, but is only responsible for negligence or want of reasonable care in their construction or maintenance. This we deem the correct view of the law on this subject. See Fisher v. Thirkell, 21 Mich. 1.

But such structures having been placed in the street for the convenience of the abutting property, it stands to reason that, as. between the property owner and the city, the duty of maintaining them in a safe condition devolves on the former. Defendant was bound, in the exercise of ordinary care, to take notice of the fact that wood will decay. Landru v. Lund, 38 Minn. 538, (38 N. W. Rep. 699.) The fact that the planks forming the cover of this hatchway showed no signs of decay on the upper side did not justify the defendant in assuming, without inspection, that they and the stringers on which they rested had not, in the eighteen years or more that they had been there, become rotten underneath, where they were excluded from the sun and subjected to moisture. Leaving these planks, -which were a part, of a public sidewalk, over an excavation five or six feet deep, with the middle stringers of the sidewalk cut away, the only support of the planks being at the two ends, the support at the inner end next the building being only about an inch in width of a perishable wooden stringer, and failing to inspect them for all these years, to ascertain their condition, constituted a state of facts that abundantly justified the court in finding that defendant was guilty of negligence.

The defendant, however, sought to escape liability by attempting to show that he had rented the premises to certain tenants, and that they, and not he, were responsible for the maintenance of this hatchway and cover; and the refusal of the court to make a finding as to the possession and occupancy of the premises by these tenants before and at the time of the accident is assigned as error.

Without considering the points that the pleadings raised no such issue, and that according to the findings of the court this cover to the hatchway was already in an unsafe condition before' the date of the lease to the tenants, it is enough to say that there was not a particle of evidence that the lease included the cellar or the hatchway.

(Opinion published 55 N. W. Rep. 818.)

There is no merit in defendant’s seventh assignment of error. Of course, the city was not liable to Schinzel for his attorneys’ fees as such, but the $150 in this case was paid to his attorneys as part of the amount which the city had agreed with him to pay in settlement of his claim against it for damages. In legal effect, it was paid to Schinzel, and as long as it was paid for his benefit, and in settlement of his claim against the city, it was wholly immaterial to whom the money was actually paid over; the aggregate amount paid out in all being within the amount for which the city and the defendant were liable to him.

As we do not discover any error in the record, the judgment appealed from must be affirmed.