The City v. Babcock
70 U.S. 240

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U.S. Supreme Court

The City v. Babcock, 70 U.S. 3 Wall. 240 240 (1865)

The City v. Babcock

70 U.S. (3 Wall.) 240

Syllabus

1. Courts sitting in error will not discuss questions not raised by the record before them.

2. Where a party has a verdict given against him on insufficient evidence, his remedy is by motion for new trial. He has no remedy in a court of error.

Among the festal anniversaries of the City of Providence, R.I., is that known as "Commencement Day." Upon this occasion, Brown University gives its degrees, and citizens and strangers throng the town. Upon the anniversary of 1859, Miss Babcock, of Connecticut, visited Providence and was participating in the spectacle. A procession was passing through one of the streets in a central part of the city, and Miss Babcock, who was walking in the same street, then filled with people, fell through an opening in the pavement which gave entrance into a cellar below, whereby she was severely injured.

A statute of Rhode Island imposes upon all cities within its bounds an obligation to keep their ways "safe and convenient for travelers," and the office of the mayor of the city having, as was proved, been the very street where the accident happened, and almost directly opposite to the place of its occurrence, Miss Babcock brought suit against the city in the Circuit Court for Rhode Island, to recover damages for the injury she had suffered.

Page 70 U. S. 241

On the trial, the city offered evidence tending to prove that the alleged defect in the street was an opening in the sidewalk adjoining a storehouse, extending fifteen inches from the side of the building, four feet long, and covered with a substantial door, upon hinges, near the building, and which, when raised, left an opening to the cellar of fifteen inches wide outside of the curbstone; in other words, that it was an ordinary vault entrance; a trapdoor to a cellar below. The entrance, it appeared, had been used for the purpose of business for a long period of time -- say forty years; the street, in fact, having been laid out in 1829, and the opening used as an entrance to the cellar before that time. The occupants of the store testified that the opening was used to let in and take out goods from the cellar of the store, and for this purpose that the lid was raised whenever they had occasion to raise it in their daily business; more or less every business day in the year; that they intended to keep it closed when not opened for such use, but they could not say that it was always so kept.

Complaints, it appeared, had been made to the occupants of the store that the opening was unsafe.

It did not appear who opened the trap next before the accident, but no one was engaged on that day, in taking in goods or taking them out, and no one was in the cellar when the plaintiff fell through the opening. One of the occupants of the store testified that the opening had not been open more than six minutes before the occurrence of the accident.

"Much other testimony," the bill of exceptions went on to say, "was also introduced, on the one side and the other, which is not reported."

The court charged that the plaintiff must prove:

1st. That the way described was a street which the city was bound by law to keep in repair.

2d. That it was defective on the day of the injury.

3d. That the city had notice of the defect.

4th. That the plaintiff was traveling with ordinary care.

5th. That the plaintiff was injured.

6th. That the injury was occasioned solely by the defect

Page 70 U. S. 242

in the street, and not from want of ordinary care on the plaintiff's part.

The defendant then, invoking the benefit of the testimony already above stated, requested the court to instruct the jury thus:

The defendant offered evidence tending to prove that the defect in the street in question was an opening in the sidewalk adjoining a storehouse extending fifteen inches from the side of the building, four feet long, and covered with a substantial cover, upon hinges, near the building, and which, when raised, left an opening to the cellar of fifteen inches in width; that the sidewalk was six feet in width outside of the curbstone; that the entrance had been used for the purposes of business prior to the time when the highway was laid out over the land adjoining the building and including this sidewalk; that the cellarway had been used by the occupants of the store for more than forty years for the purpose of taking in and putting out merchandise in the course of their business, being opened for that purpose as required during the periods of actual use; that on the occasion of the accident, the door covering the opening had been raised for use by the occupants of the store but six or eight minutes; that no complaint had been made to the occupants of the store or to the city authorities of this mode of use, though this street was one of the great avenues for pedestrians in the City of Providence.

And thereupon asked the court further thus to charge:

"The owners of the store had the right so to use this opening in the sidewalk for the purposes of actual business; that it was not negligence on the part of the city to allow such an opening, so protected and used, to be continued, and that upon the evidence the city had no notice that the highway was unsafe or inconvenient by the opening of the cellar door and keeping it open for use during the period testified to."

But the court refused so to charge, and the jury having found for the plaintiff $3,300, the correctness of such refusal was now the question here.

Page 70 U. S. 244

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