Barnes v. City of Carson , 33 Nev. 17 ( 1910 )

By the Court,

Sweeney, J.:

Respondent obtained a judgment against the appellant in the sum of $5,000 for personal injuries on account of falling into an excavation made in one of the public streets of the city of Carson, which excavation was alleged to have been made by the appellant and negligently left unprotected. From the judgment, and from an order denying the defendant’s motion for a new trial, defendant has appealed.

It is the main contention of appellant that the proofs failed to show that the excavation was made under the authority of the city trustees, or that they, with knowledge, ratified the acts of the persons who performed the work. It is the contention of appellant that the evidence shows, without conflict, that the work was done under the direction of the city marshal acting independently of the city trustees, and that there was no proof that he was authorized by the said city trustees to perform such work, nor was his act ratified by said trustees with knowledge of the circumstances. It is further contended upon the part of the appellant that the said city marshal, by virtue of his office, had no power to make the excavation, nor did he possess, by virtue of his office, any supervision over the streets and alleys of the city of Carson.

Section 10 of the act incorporating the city of Carson (Stats. 1875, c. 43, as amended by Stats. 1907, c. 29) provides "The board of trustees shall have the following powers: * * * 3. To lay out, extend or change the streets and alleys in said city and provide for the grading, draining, cleaning, widening, lighting or otherwise improving the same; also to provide for the construction, repair, preservation, grade and width of sidewalks, bridges, drains and sewers and for the prevention and removal of obstructions from the streets, alleys and sidewalks, drains and sewers of said city. * * * ”

It may be conceded, under this provision of the statute, that the control of the streets, sidewalks, and alleys of Carson City is exclusively in the hands of the city trustees, and that the city marshal, by virtue of his office, has no power or control over the same. Whatever acts the city marshal may perform in relation to the streets, sidewalks, and alleys of the city must be by virtue of authority from the city trustees, or else they are, in law, but the mere acts of a stranger.

The excavation in question was made by one A. Lafreniere, who testified that he was employed by and acting under the general direction of the city marshal. The said Lafreniere testified that he had been in the employ of the city marshal for about four years prior to the accident in question, and that he was paid for his services by the city. It also appears from the record that the said Lafreniere was the man generally in charge of the street work for the city. ' While Mr. Lafreniere testified that he was employed by and acting under the direction of the city marshal in the matter of looking after the streets and alleys of the city, and while the marshal’s testimony was to the same effect, it can hardly be said, we think, that both the city marshal and Mr. Lafreniere were not working under the direct authority of the city trustees. All claims for services rendered were approved by the city trustees and paid by the city, and this condition of affairs is shown by the record to have existed for at least four years prior to the accident in question. It cannot be said, we think, that a long-continued arrangement of this kind was not without the authority and approval' of the city trustees who alone had legal authority in the premises. Had the proofs shown that the city marshal and the witness Lafreniere had assumed to act only in the particular case which resulted- in the injury to the plaintiff and respondent, it might well be contended that the city would not be bound by their acts unless by proof of special directions in this particular case or by subsequent ratification with full knowledge of all the facts. Where it appears conclusively, however, that the work done upon the streets, which occasioned the accident, was in pursuance of a policy in reference to such streets that had existed for a number of years, it must be presumed that such policy was with the approval of the lawfully constituted authority.

However, whatever question there may be as to whether the work in question was done by lawful authority or was subsequently ratified, the same, we think, is removed from question in the case by the pleadings themselves. The answer of the defendant, appellant herein, sets up the following: "For a third, other, and affirmative answer and defense to plaintiff’s complaint, defendant alleges and shows to the court as follows, to wit: That at the time mentioned in plaintiff’s complaint, to wit, the 24th day of January, 1906, and for several days immediately prior thereto, a violent storm and precipitation of water occurred in Carson City and the vicinity thereof, necessitating defendant, by and through its employees, in different places to temporarily open drains and ditches in order to allow the flood waters to pass therethrough, and that because of said necessity defendant did on the said 24th day of January, A. D. 1906, at the place mentioned in plaintiff’s complaint, partly open the plank covering of a drain ditch, and did temporarily remove therefrom accumulated debris and dirt for the purpose of allowing said flood waters to pass through, but that said act or acts of the defendant were rendered necessary by reason of the extraordinary and unusual conditions herein mentioned, and that said removal and deposit of said materials was temporary, and was performed and caused to be performed by defendant in as reasonable and safe a manner as said existing conditions permitted.”

From this alleged appellant’s defense, it appears that the city authorities knew, prior to the accident, that a condition existed making it necessary to make repairs in the street at the place where the accident occurred, and that it did make the excavation which occasioned the accident and resulting injury to the plaintiff, for which a judgment for damages was recovered in this case. There is here a clear admission in the appellant’s answer of the only fact that has been argued upon the appeal as being unsupported by the evidence. The evidence is without contradiction that the excavation was left in the evening without lights to warn pedestrians of its existence and that, by reason of such negligence, the injury in question occurred. No question is presented upon the appeal that the damages were excessive.

Error is assigned in the admission of certain city ordinances over defendant’s objection and in the giving of one instruction to the jury, but in the view we take of this case, even conceding, without so deciding, that the lower court erred in the admission of the ordinances or in the giving of the instruction, the same were without prejudice. When it was established upon the trial that the excavation was made in the street by the city and negligently left in the nighttime without proper lights to indicate the same, and that by reason thereof the plaintiff was injured, there was nothing left for the court and jury to determine but the amount of damages. As the other alleged errors did not go to the question of the amount of damages, the alleged errors, if any occurred, could not possibly have been prejudicial, hence we have given them no consideration whatever.

The judgment and order of the lower court are affirmed.