Kleopfert v. City of Minneapolis

93 Minn. 118 | Minn. | 1904

LOVELY, J.

Plaintiff brings this action to recover for injuries sustained on Ken-'wood Boulevard, in the city of Minneapolis, which was held on a former appeal (90 Minn. 158, 95 N. W. 908) to be a public street. The cause was tried to the court, who upon findings of fact sustained the view that the city was liable for injury to a bicycle rider who, in trying to avoid a rope placed across the boulevard by the servant of the park commissioners, collided with a team and was injured. Judgment was ordered for plaintiff. Defendant appeals from an order denying a new trial.

It was held in the previous decision that the facts set forth in the complaint constituted a cause of action. They are clearly and fully summarized in the opinion of the court (START, C. J.), and do not need to be repeated here. We held that there was no reason why the liability of the city for the negligence of those in charge of this street should be affected by the fact that it was under the subsidiary control of the park board, instead of the direct supervision of the city council, and that the defendant was liable for the negligence of the board in the care of the thoroughfare.

The trial court found, upon sufficient evidence supporting its conclusions, that on the afternoon of July 12, 1902, defendant, through its employee — a park policeman — caused a rope to be strung across the street, tied to a lamp post on one side and to a tree on the other, about three to five feet above the ground; that the park policeman was under the supervision and control of the park commissioners, the superintendent of which gave him directions and prescribed his duties; that the rope was so suspended in order to carry out the instructions given him on the preceding day by such superintendent to the effect that he should prevent constant travel upon the street at this place. It is urged on behalf of the defendant that the functions of the park policeman were the same as an ordinary member of the police force, for which the city would not be liable any more than if he had committed a wrongful act in arresting an individual, or for any breach of municipal or governmental functions. We think this contention is disposed of by the previous decision. The nature of the act, rather than the official title or character of the officer to whom the duty of caring for and attending to the public streets or exercising duties thereon conflicting with the right to use the same, determines the liability. It could hardly be claimed in reason that a municipality, by delegating the work of repairing its streets to a police officer, could relieve itself from known defects or failure to repair. The duty to maintain streets in proper condition being recognized, a liability for negligence m that respect exists if the municipality intrusts such duty to any officer. Neither is it of any significance that the act of the policeman in this instance, who-was commanded to do certain things on the boulevard or thoroughfare, was one of commission, rather than omission.

There is nothing in the suggestion that it was not found that the city had notice of the obstruction, or that it must have continued for such a length of time as to have given constructive notice thereof, for the city must certainly be held to have had notice of that which it directly ordered to be done. The rule applicable to constructive notice where dangerous conditions demanding repair have existed for a considerable-time, thus furnishing evidence of notice, has no application to a case where such conditions are directly caused by the servants of the municipality.

Order affirmed.