17 S.D. 326 | S.D. | 1903
By an exception to the action of the trial court in overruling the defendant’s objection to the introduction of any testimony on the part of plaintiff, we are first called to determine whether facts sufficient to constitute a cause of action are stated in the following complaint: • “That the- defendant, city of Eureka, is a municipal corporation, organized under the law of this state approved March 6, 1890, the act being chapter 37 of the Session Laws of said year. That on the 10th day of October, 1901, and for more than a year prior thereto, the sidewalk of said city in front of the Merchants’ Hotel on Market street in said city was and had been grossly . defective' in construction, rotten, and badly out of repair and dangerous. That said defects were well known to said city and' to the mayor, marshal, policemen, and other officers of the defendant for more than a'year prior to said date. That on October 10, 1901, the plaintiff, while passing along said sidewalk, "without any fault or negligence on his part, stepped upon a short board or patch therein, which, being rotten,' and negligently' secured
The judgment appealed from is therefore reversed, and the case remanded for further proceedings.