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City of Pueblo, defendant-appellant, v. Smith, plaintiff-appellee, 143 P 281 (1914). A mail carrier bicyclist was crossing a viaduct. He hit the raised edge of a plank, fell and was injured. Judgment for plaintiff, reversed and remanded with directions to dismiss the complaint. From the court's opinion: "There is no material dispute over the facts affecting the merits of the case. Union avenue, upon which there is constructed a viaduct about 400 feet in length and 32 feet wide, is one of the principal streets of Pueblo. In the latter part of 1909, it became necessary to refloor this viaduct, which was done with what is commonly termed three-inch plank, which varied somewhat in thickness. These planks were laid lengthwise on the bridge, and the difference in thickness caused an unevenness in the floor where they came together, varying in some places, according to witnesses who measured the difference, from a quarter to three-quarters of an inch. The street car tracks cross this viaduct, and at the time of the accident, plaintiff was riding his bicycle between the rails on one of the tracks. Hearing a car coming behind him, he attempted to ride off the track, and, striking one of the raised edges of the plank, fell and was injured. At the close of plaintiff's evidence, defendant asked the court to direct a verdict for the city, which motion was denied, and the error assigned on this ruling is the only one we will consider.
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"The general rule applicable to this subject is that cities shall construct and maintain the streets, under whatever circumstances may arise, in a reasonably safe condition for ordinary travel by those using in a proper manner that particular part of the highway. Under no conditions can a municipal corporation be regarded as an insurer of the safety of those using the streets. ...
"In the case before us, to sustain the judgment, we must virtually say that every municipality must maintain its streets, bridges, and viaducts not only in a reasonably safe condition for ordinary travel, but must use extraordinary precautions to maintain them free from all ruts, holes, projections, depressions, or unevenness exceeding a difference of from half an inch to an inch and a half from the general surface of the street, or be compelled to respond in damages for any accident which might be occasioned by reason of such unevenness. The unreasonableness of such a rule is the best argument against it; it would be contrary to the well-established principles of law on this subject, an we must decline to entertain such a proposition." |
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