125 P. 194 | Idaho | 1912
This action was commenced to recover from Boise City certain damages for personal injuries sustained by the plaintiff on June 29, 1907. The cause of the injuries was the tripping and falling by the respondent over a telephone wire attached to a pole which lay close to the sidewalk. The pole was about twenty feet long and six to ten inches in diameter. The wire, which was several feet
The cause was tried to the court with a jury and the jury rendered a verdict in favor of the plaintiff for $3,000, and judgment was entered for that amount on said verdict. The appeal is from the judgment.
1. Several errors are assigned as to the rejection and admission of evidence. We have examined those assigned errors and are fully satisfied that the court did not err in the admission or rejection of such evidence.
2. The denial of the appellant’s motion for a nonsuit is assigned as error. A motion for a nonsuit was interposed at the close of plaintiff’s testimony and denied. Thereafter at the close of all the testimony in the case the motion was renewed and denied. Upon a careful examination of the
3. It appears that counsel for plaintiff stated during bis argument that Boise City would have a remedy against the Rocky Mountain Bell Telephone Company to recover any judgment that might be rendered against it in this case, and was thereupon interrupted by counsel for defendant who requested the court to instruct the jury that such remarks should not be considered by them in the case, and the court thereupon said: “The jury is instructed in response to counsel’s request that the only question for them to consider in this case is the liability of the defendant, Boise City, to the plaintiff and not the liability as between Boise City and the Bell Telephone Company or any other parties not mentioned in this record. ’ ’ So far as the record is concerned, that closed the incident. It appears from the record that the question was mooted, at least, as to whether the Bell Telephone Company was the responsible party. Instruction No. 7 given by the court is as follows: “The jury is instructed that the fact as admitted in the answer of the defendant that the pole and wire causing the injury in this case belonging to the Rocky Mountain Bell Company, did not in any way relieve the defendant from its duty to keep the said pole and wire from causing an unreasonable obstruction to the pedestrians using ordinary care in walking on the board walk in question in this case. If the city was negligent, as set forth in these instructions, then it is no defense for it to say that the Rocky Mountain Bell Telephone Company was also negligent.” This instruction indicates that said matter had been considered by the court, and we are fully satisfied from the whole record that the appellant was not prejudiced by said statement made by counsel.
It was contended by counsel for respondent that the rule laid down by this court in Goldstone v. Rustemeyer, 21 Ida. 703, 123 Pac. 635, is not supported by the weight of authority. However, this court has approved the rule there laid down in Petajaniemi v. Washington Water Power Co., ante,
“¥e have examined it [argument of counsel] with care and must say that it was of such a nature as could not well be approved by any court and was calculated to prejudice the jury rather than to furnish them any aid in the way of fact or argument upon which to base a verdict. If there was any doubt as to the justice of the verdict in this case, the court would be justified in reversing the judgment on account of the prejudicial statements and arguments made by counsel for respondent”; and cited with approval Goldstone v. Rustemeyer, supra. This court has no inclination to depart from the rule laid down in the Rustemeyer case. Counsel must keep themselves within reasonable bounds in making their arguments to the jury, and not make statements outside of the record with the clear purpose of prejudicing the jury.
4. It is also contended that there is no evidence showing or tending to show that Boise City had no notice, actual or constructive, of the condition of said pole and wire lying along the sidewalk. There is nothing in this contention, as it appears from the evidence that said pole with the wire attached had been lying by the sidewalk for two or three months at least. It is the duty of the city officers to be vigilant in keeping its streets and sidewalks in repair so that the traveling public will not be injured by defects therein. In the note to the ease of Elam v. Mt. Sterling, 20 L. R. A., N. S., on p. 725, it is stated:
“The city should exercise reasonable care to discover defects and obstructions in its streets and sidewalks, and the performance of this duty requires their inspection, and the existence of such a defect or obstruction for a long time warrants the conclusion of actual knowledge thereof. ’ ’
And whether the city had constructive knowledge is a question for the jury. Boise City was given power over its streets and sidewalks and highways by its charter. It appears that the legislature had been very liberal in granting powers to Boise City under its special charter, which was in force at the time this accident occurred. And whenever a
“In such communities the travel both by day and night is so much greater in comparison with the travel over the country at large that the maintenance of good and safe thoroughfares for the protection of life and property becomes an urgent necessity, and such corporations should be held liable for a negligent discharge of that duty. The application of this principle should prove a spur to the officials of such corporations to keep the streets and sidewalks in a safe condition for the uses to which they are dedicated. Its denial would be to defeat the plainest justice in many instances.”
City officials must understand that if they neglect to keep the streets and alleys in proper repair and injury results from such negligence, the city is liable for the damages, and
Although the city did not place said telephone pole and wire by said sidewalk, the city nevertheless is primarily liable, notwithstanding the negligence of a third party in placing said pole by the sidewalk. It is the primary and absolute duty of the city to keep its streets and alleys reasonably safe, and that duty extends to all obstructions placed therein, no matter, by whom. The primary fault and liability may be that of an abutting owner or a police officer or of a stranger, yet the city will be liable. (5 Thompson on Negligence, sec. 6170.)
5. The refusal of the court to instruct the jury to return a verdict for the defendant is assigned as error. That contention is without merit. The court did not err in refusing to give such instruction.
We have considered the other errors assigned but shall not refer to them in detail here. It is sufficient to say that we find no reversible error in the record and the judgment must be affirmed, and it is so ordered, with costs in favor of the respondent.
