Merritt v. McFarland

[391]

GRAY, P. J.

This action is brought against the city of Riverside, a city of the sixth class, to recover damages for personal injuries sustained while the plaintiff was walking along Locust street by falling over an embankment at the intersection of Locust and Seventh streets in said city. The action is brought against the superintendent of streets of said city, the sureties on his official bond, and the city trustees of said city. Plaintiff had a verdict and judgment. The defendants appeal from the said judgment.

It is contended on behalf of the defendant, the superintendent of streets, T. K. Seburn, that his motion for a non-suit should have been granted, because it was not shown that any duty rested upon him which he had failed to perform, or which he had performed in a negligent manner. With this we cannot agree. It was shown, without conflict, that under his supervision Seventh street at its intersection with Locust street had been cut down so as to leave an embankment two feet in height on one side of said Seventh street. It was also shown, or rather admitted in the pleadings, that Locust street and Seventh street were streets of said city dedicated to public travel; and while there is nothing to show that Locust street had ever been worked as such, the evidence, without conflict, shows that it was traveled as a public street; and further, that plaintiff while traversing said Locust street within the boundaries thereof and in the place where the sidewalk should be, but where no sidewalk was laid, in the darkness of the night, fell over said embankment into said Seventh street. It was further shown that the work so done on Seventh street by the superintendent was regularly and duly authorized by said city trustees. This embankment constituted an obstruction and, as the result shows, it constituted a danger to public travel. No protection in the way of lights, or in any other manner, was made by the superintendent of streets against such danger. The superintendent of streets had actual notice of the dangerous condition of this street. It was his duty to see that any such danger was remedied, and that the public streets of his city were kept in a reasonably safe condition. The Yrooman act (Stats. 1885, p. 160), section 22, provides as follows:

“It shall be the duty of the Superintendent of Streets to see that the laws, ordinances, orders, and regulations relating