Dobbins v. City of Arcadia

SHAW, J.

In this action plaintiff sought recovery of damages alleged to have been sustained as the result of the negligent acts of the city trustees and city engineer of the city of Arcadia.

Upon findings made, it was adjudged that plaintiff recover as against defendant Ehle, who was the city engineer, and take nothing as to defendants Charles A. Billings, J. W. Barnes, A. L. Parker, H. M. Roth, and James A. Stoker, who were trustees of the city, from which part of the judgment adverse to plaintiff he appeals upon the judgment-roll.

In substance, the findings upon which appellant claims the judgment should be reversed and judgment thereon directed in his favor as to the defendants named as trustees are: That the city of Arcadia is a city of the sixth class, and that the parties, other than defendant Ehle, at all times mentioned constitute its board of trustees; that on December 14, 1914, pursuant to an order made by the board of trustees on December 3d requiring him so to do, defendant Ehle caused a trench five feet deep and eight feet wide to be dug across Huntington Drive for the construction of a storm drain; that on said date, to wit, December 14th, said Ehle left said trench improperly guarded by any warning light or signal to indicate the existence of said trench, or other than a wooden barrier insufficient for such purpose, until

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after 6 o’clock P. M. of said evening; that said trench “was constructed under the supervision and direction of said Ehle', and he, and he only, had the supervision and direction of the said work of improvement”; that said trustees knew at the time they ordered the construction of said storm drain that it would necessitate the digging of a deep and dangerous trench across the drive, but made no provision for guarding the said trench or the placing of any warning lights or signals to indicate its existence, “but that said defendants did not, nor did any of them, have any actual notice- that said trench was left unguarded and without any warning lights or signals, nor did any of them have anything to do with the work of constructing said trench other than to instruct said Ehle, as aforesaid, to have the said drain constructed as aforesaid”; that about 5:45 o’clock P. M. of the day on which said trench was dug, and while so improperly guarded and without light or signal to indicate its existence, plaintiff was traveling along said street in an automobile, proceeding with due care for his safety, and, being unaware of the existence of said trench, was precipitated into the same, as a result of which he suffered bodily injury in the sum of five hundred dollars and his automobile was damaged in the sum of $475, for which sums the court, as a conclusion of law, found that plaintiff was entitled to judgment against defendant Ehle, and as to the other defendants that he was entitled to take nothing.