47 App. D.C. 48 | D.C. Cir. | 1917
delivered, the opinion of the Court:
Appellants, Charles L. and Tullían M. Finney, plaintiffs below, husband and wife, brought these suits in the supremo court of the District of Columbia to recover damages for personal injuries sustained by plaintiff Lillian M. Finney on one-of the streets in the city of Washington.
It appears that during the forenoon of September 25, 1915, at Ninth and F streets, northwest, where the traffic is very heavy, plaintiff was transferring from a Ninth street ear to an F street car when she stepped into a tree space in the sidewalk and fell, sustaining the injuries complained of. The. declaration charges the defendant District with negligently maintaining the space in a condition unsafe for use by pedestrians. The tree space in question, in which stood a tree, consisted of an unpaved area about 3 by 6 feet immediately inside, of the curb, the surface of which was from 3 to G inches below the level of the top of the curb and the concrete sidewalk. From a verdict and judgment in favor of defendant this appeal was taken.
Evidence was adduced on behalf of the District, and over the objection of plaintiff, to the effect that the space in question was left in the sidewalk in pursuance of a general plan for the propagation of trees, throughout the city. It was also shown that, as part of the plan, the surface of tree spaces was left lower than the surrounding curb and walk for the purposes of conserving moisture to aid the growth of the trees, and that the depth of the spaces varied according to the needs of the trees. It therefore was urged by counsel for the District that, the creating of tree spaces being part of a general plan, there could be no liability for accidents occurring to pedestrians from defects due to error of judgment in formulating the plan, so long as the plan adopted was a reasonable one. Johnston v. District of Columbia, 118 U. S. 19, 30 L. ed. 75, 6 Sup. Ct. Rep. 923.
We think no error was committed in the admission of this evidence; nor was there error in giving an instruction to the effect that the tree space was not part of the sidewalk nor intended to be used as such. It was«*clcarly established .that i.t
Error is assigned in the exclusion of the evidence of a witness who had made measurements of other tree spaces in the city of Washington. The ruling was correct. The sole issue involved was the condition of the space in question. District of Columbia v. Pierce, 44 App. D. C. 126. If it was dangerous it could not be held to conform to any reasonable plan of construction, irrespective of the condition of spaces in other parts of the city. If constructed according to plan, or otherwise, the District could not avoid liability if it was allowed to become dangerous. If the plan adopted was a reasonable one, and the space in question conformed to tljat plan, the District would
The whole issue was one of fact for the jury to determine,— whether or not the plan, as proved, was a reasonable one; whether the space in question conformed to the plan so proved, not to the condition of certain spaces in other parts of the city; whether the space, though found to have been originally constructed according to a reasonable plan, had been permitted by the neglect of the District to become washed and tramped out until it was in a dangerous condition; and whether the plaintiff was guilty of contributory negligence iu stepping into a space not intended for use by pedestrians in the manner she did, as disclosed by the evidence. In the comprehensive charge of the court below, these issues were all fully and fairly submitted to the jury.
This leads directly to the remaining assignments of error, which refer to prayers offered by plaintiff, and refused by the court, presuming to define the duty of the District in respect, of keeping its streets and sidewalks in safe condition. In all material respects the requests were covered in the court’s charge. The prayers were offered upon the theory that the tree spaces are part of the sidewalk intended to be used by pedestrians. The court properly held that the space is not part of the sidewalk, but did fully charge with respect to the duty of the District in construing and keeping the spaces in sucll condition as not to be or become dangerous to persons using the street or sidewalk. The charge properly stated the law on this point.
The trial was without error, and the judgments are affirmed, with costs. Affirmed.