134 P. 1167 | Utah | 1913
This is an action to recover damages for injuries sustained by the occupants of respondent’s automobile and to said automobile by driving the same into an exposed and uncovered conduit or ditch in one of the streets of Salt Lake City, which ditch, it is alleged, was negligently left unprotected and unguarded by said city, appellant herein. We shall state the facts deemed necessary in connection- with the particular point decided.
Appellant’s counsel contend that the court erred in overruling their general demurrer to the complaint. The question with regard to the demurrer arises as follows:
We have a statute (Comp. Laws 1907, section 312) which, so far as material here, provides:
“Every claim against an incorporated city or town for damages or injury alleged to have been caused by the defective, unsafe, dangerous, or obstructed condition of any street, . . . culvert, or bridge, ... or from the negligence of the city or town authorities in respect to any such street, . . . culvert, or bridge, within thirty days*310 after the happening .of such injury or damage, be presented to the city counsel ... in writing, signed by the claimant or by some person by claimant authorized to sign the same, and properly verified, stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of the said injury or damages, . . . and also stating the nature and probable extent of such injury, and the amount of damages claimed on account of the same-, . . . and no action shall be maintained against any city or town for damages, or injury to person or property, unless it appears that the elaim for which the action was brought was presented as afor'esaid to the city council . . . and that such council . . did not within ninety days thereafter audit and allow the same. Every claim, other them claims above mentioned, against any city or town, must be presented, properly itemized or described and verified as to correctness by claimant or his agent, to the city council . . . within one year after the last item of such account or claim accrued, and if such account or claim is not properly or sufficiently itemized or described or verified, the city council . . . may require the same to be made more specific, as to the itemization or description, or to be corrected as to the verification thereof
Section 313 provides that, unless the claim is presented to the city council “in the manner and within the time in section 312 specified,” it shall be barred; “provided, that in case an account or claim other than a claim made for damages on account of the unsafe, defective, da/ngerous, or obstructed condition of any street, . . . culvert, or bridge, is required by the council or board to be made more specific as to itemization or description, or to be properly verified, sufficient time shall be allowed the claimant to comply with such requirement(Italics ours.)
Without pausing to set forth the allegations of the complaint, it must' suffice to say that the first contention that the complaint is defective in substance because it does not suffi
Appellant’s next contention is more serious. Respondent, in presenting bis claim to tbe city council for allowance, complied with tbe provisions of section 312, supra, by specifically stating tbe nature, extent, and amount of tbe injury and damages sustained and claimed. Tbe aggregate of tbe items claimed amounted to $245.69. Appellant did not audit and allow tbe same within tbe time provided by tbe statute, and hence tbis action was commenced. In tbe complaint, after setting forth tbe items of damage, etc., contained in tbe original claim presented to tbe city council, respondent also claimed additional damages in tbe following words: “To depreciation in value of said automobile by reason of its general impairment caused by such falling (into tbe ditch or conduit) and by reason of tbe making of necessary repairs thereon.” In tbe original claim presented there were items for repairs and otherwise as follows: “To necessary repairs of automobile, $133.19; to loss of poeketbook containing money and jewelry,” lost in tbe ditch into wbicb tbe automobile was driven, $78; to medicine and medical attendance to tbe occupants of said automobile, . . . $14.5’0;” and for taking tbe automobile out of tbe ditch $20 —making a total of $245.69 claimed in tbe original claim
(1) That although the amount claimed must be stated in the claim that is presented to the city council, yet the amount claimed is not controlling provided it develops, after the original claim is presented that there are other-consequential damages which were caused by the injuries-complained of and referred to in the claim; and (2) that where the injured party cannot on account of physical or mental inability present the claim within the time fixed by the statute, or cannot state the amount of the damages because he did not and could not ascertain it within such time, he may nevertheless recover'the actual amount of damages, sustained by him.
To sustain the first proposition the case of Mackay v. Salt Lake City, 29 Utah, 247, 81 Pac. 81, 4 Ann. Cas. 824, is relied on. In that case this court in effect held that where the extent of the injuries (in that case personal injuries) are not known at the time the claim is presented to-the city council, and thereafter it develops that the injuries are more serious than it was supposed and proved to-be permanent, and it is made to appear that the injuries are the ones described in the original complaint, under such circumstances the injured person may nevertheless prove- and recover the full amount of damages sustained by reason of the injuries complained of. The doctrine that purely consequential damages which are the proximate result of the-injuries described in the original claim presented may be recovered, although they are in excess of the amount originally-claimed, is now well established. The question that must be-
The case of Bowman v. Ogden City, 33 Utah, 196, 93 Pac. 561, is also cited by respondent. That case arose under the amendment of 1903, a portion of which is quoted by Mr. Justice Straup in the opinion, and the decision is based upon the quotation as there given. The portion of the statute quoted by Mr. Justice Straup as aforesaid was ■eliminated therefrom by the amendment of 1905 so far as the same applied to claims arising through negligence. Prom an examination of the Mackay Case and the cases there ■cited, it will at once be seen that the statute in its present form, and which controls the case at bar, is very different from what it was when the Mackay Case and the Bowman Case were dieided, and is also different from any statute passed on by any of the courts in the cases cited and relied on in the foregoing cases or by respondent’s counsel in this case. The purpose of the statute in requiring the claimant to particularize and state the amount he claims and that he shall not recover for any items or injury not described or stated in the claim presented is so manifest that it would amount to a virtual repeal of the statute to allow respondent to recover for the $1000 item. What is that item for? In what way was it either described or referred to in the ■original claim presented, either directly or indirectly? In the original claim the damages and injuries were stated in the following language:
*315 “The damage to property and person in the sum of $245.-69, as follows:
Pulling car out of creek.$20 00
Bill for repairing frame, seat, etc. 50 69
Replacing broken lamps. 30 00
Replacing broken crank case and broken light brackets .. 42 50'
Necessary expenditures yet to be made for repairs 10 00
Doctor'bill for attendance upon Mrs. F. A. S¡weet and Mrs. F. E. Ogle . 12 00'
Drug bill for medicinal articles. 2 50
To value of contents of handbag containing money, watch, three gold chains, two gpld bracelets, pocketbooks, etc.. 78 00”'
The other portions of the claim simply refer to the time- and place of injury, and how it occurred, and in what way it was claimed appellant was negligent, with a statement that the repairs to the automobile were necessary and that the other property referred to was lost.
The most that can be said is that the respondent in his claim alleged that, in addition to the specific injuries and damages claimed by him in the original claim presented to-the city council, his automobile had depreciated in value' “by reason of its general impairment caused by falling,” etc.
The purpose of our statute is very dear, which is to require every claimant to clearly state all of the elements of' his claims to the city council for allowance as a condition precedent to his right to sue the city and recover his damages in an ordinary action. That the state through its lawmaking pbwer has an absolute right to impose such conditions, all courts agree. One of the principal objects of the statute is to prevent spurious claims from being paid, and, in order to fully accomplish that purpose, to give the city officials ample opportunity to examine into hoth the cause and extent of the injury and also to test the good faith of the claimant in presenting the claim. In view of the form in which the claim was presented in this case, could any one suspect that a claim for $1000 for “general impairment” of the auto
By what we have said upon this question we do not wish to be understood that an injured person may not at the trial recover the actual damages sustained by him where such damages are the necessary and proximate consequences of the injuries described in the claim presented and where the injured person could not know at the time of the presenta
We have gone into the question at considerable length for the purpose of avoiding, if possible, confusion with respect to the numerous decisions upon the question and to make the proposition clear that this decision is based upon the statute of our own state.
That North Temple Street runs east and west, and that there is a walled-up but open conduit, or ditch running longitudinally in about the center thereof, which ditch or conduit was used to conduct the surplus or waste waters from' City Creek Canyon through the city westward into the-Jordan Kiver. That First West Street runs north and south across said North Temple Street at the place of the-alleged accident. That at the intersection of said streets-said ditch or conduit was completely covered over by the city with a bridge or culvert so that the full width of First West Street could be used, and that driveways were used on North-Temple Street on either side of the ditch aforesaid. That either in June or early in July, 1909, the surplus waters increased to such an extent that they washed out the bridge or culvert which was placed across said ditch on First West Street. That the city preparatory to putting in a permanent bridge on said intersection put in a temporary driveway for teams on the east side of First West Street and a footway for pedestrians on the west side thereof leaving the d^tch open in a portion of the center of said street. That
One of the principal acts of negligence relied on by respondent — in fact, the only one tried out — was the city’s failure to properly light and guard the open space in said ditch to which we have referred. In order to establish the city’s negligence in failing to properly light and guard said ditch, the respondent, over appellant’s objections, was permitted to testify as follows:
■ “There should be constructed upon each side of the obstruction and around all that part that was within the street, the traveled part of the street, there should be a guard in the form of a fence or railing, a sufficient distance away from the obstruction to warn people and to prevent them from running, from actually running in, and along such guard there should be — and around this substantial guard con*320 structed around such a dangerous pit as has been described there should, during the nighttime, after daylight there should be red lanterns or red lights displayed, and there-should be enough of them so that if one or two or a few of them go out there would still be sufficient left burning to-give notice to the public that there was a danger ahead. The street at such a point should be lighted by night as a further protection or precaution. Such a light should be-fixed so there would be no possibility of anybody running into it without having ample and sufficient warning in advance.”
It is now urged that the court erred in permitting the witness to testify as aforesaid and in allowing the testimony to-be considered by the jury. Respondent seeks to justify the court’s ruling upon the theory that the witness testified as an expert upon a subject involving expert knowledge. To sustain his contention he cites 5 Ency. Ev. pp. 550, 600, 601, and Jones, Ev. section 382; also, Fritz v. Western Union Telegraph Co., 25 Utah, 263-269, 71 Pac. 209. In our judgment neither of these authorities sustains the contention. It is palpably clear from respondent’s testimony that he, and not the jury, was permitted to say what was reasonably necessary for the city to do in order to afford sufficient protection to those using the street in question. As we have pointed out, there were two driveways on North Temple street, one on the north and the other on the south side of the ditch in question. The witness would have-required the city to close these driveways by placing barriers'beyond them, It may be that it was necessary to have done this, but whether it was, was not for the witness to say upon the one hand, nor for the city to say that it was not upon the other; but it was for the jury to say whether, under all the facts and circumstances, the city should have-placed the barriers farther away from the ditch. In this state there is- no statutory provision^ requiring the city to place signal or other lights as- a means to protect travelers. And while under the facts in this case it perhaps would have been proper to charge the jury that as a, matter of
It is next contended that the court erred in charging the jury as follows:
10 “It appears from the evidence that the defendant city makes no contention that signal lights were placed at or about the excavation in question. It does claim, however, that, by reason of a street light situated at such excavation, the existence of such obstruction and the danger therefrom were.made apparent to one driving along the street, and himself in the exercise of due care. And in such behalf you are instructed that, under the facts as shown in this case, it was the duty of such defendant city to exercise ordinary care that such' street light be kept burning continuously during the entire night in question and if it failed to do so, and such condition existed so long prior to the accident that the defendant, if it had exercised reasonable care and diligence in the supervision of its streets, ought to have discovered such condition and remedied the same, such failure on its part would be negligence.”
(1) It is open to the criticism that the court assumed that the city was at all hazards required to maintain either a signal or some other light at the place in question; (2) it is open to the criticism that the court permitted the jury to infer (although perhaps not so intended) that it was the duty of the city to maintain a street or intersection light constantly lighted during all hours of the night, and, if the jury found that thirty minutes was sufficient to impute notice to the city that the light was out, then the city was negligent in not having the same relighted within that time without any evidence whatever upon which to base such a finding. That is, there was no evidence whatever what caused the light to be out in a rainy and stormy night, but the jury were left to assume that it was due to some fault' of the city, and further to assume that because it remained' out for thirty minutes that was also due to some want of _ordinary care on its part. It may be true that the city was negligent in omitting to have one or more signal lights burning at or near the open space in the street to warn travelers of the unsafe or dangerous or defective condition thereof, but whether it was or not, or whether the means, if any were used by the city to warn the traveler, were sufficient or not, were questions of fact for the jury to be determined from all the facts and circumstances in evidence before them. In this regard the city could choose its own instrumentalities or means to warn the traveler, and it was for the jury to say whether the ones chosen by it were reasonably sufficient to apprise the users of the street of the danger to which they were exposed. The error
It is, however, not the legal duty of the city to maintain street lights, although, as we have seen, it may be its duty under certain circumstances not only to put up barriers but also to place signal lights for the purpose of indicating unsafe or dangerous places in streets and to warn those who may use them of the danger to which they may be exposed. The duties of the cities in that regard are fully defined in the case of Herndon v. Salt Lake City, 34 Utah, 65, 95 Pac. 646, 131 Am. St. Rep. 827, and need not be repeated here. In the case at bar, therefore, if the city was negligent in not maintaining a light, it was because it did not put up a signal light or lights, and not because it did not maintain the light burning at the intersection of the two
It is also insisted that the court erred in refusing appellant’s request to charge the jury to the effect that appellant was not required to maintain its streets in any dif
There are quite a number of other assignments of error argued, but most of them have been sufficiently covered by what has been said, and the others are not of sufficient importance to require special consideration. We desire to add in conclusion, however, that the issues of this case are very narrow. While, as we have remarked, the general or broad issue of the unsafe or dangerous condition of the streets in question' is presented by the complaint, yet the real issue tried &nd to be tried is not whether the street was reasonably safe for travel, but whether the city had exercised the ordinary care required of it in placing barriers or signals to apprise the traveler of the actual condition of the street so that he could avoid being injured. The city was not required to maintain the entire width of the intersection in a safe condition for travel in case’of a flood. It was not even required to keep open any portion of the intersection during such time as was reasonably necessary to make repairs; but, so long as the city has chosen to prepare a portion of the intersection for travel, it was bound to exercise ordinary care in discovering and using means which were sufficient to give timely warning to those
The judgment is reversed, and the cause is remanded to the district court of Salt Lake County, with directions to grant a new trial and to proceed with the case in accordance with the views contained in this opinion. Costs to appellant.