132 P. 26 | Mont. | 1913
delivered the opinion of the court.
So far as germane to the questions involved in this appeal, the substantial allegations of the complaint are: That the defendant, a corporation, is the owner of the Tzarena lode mining claim, situate partly within and partly without the corporate limits of the city of Butte; that on July 19, 1911, there was, and for more than a year prior thereto had been, a certain shaft, about forty-five feet deep, on this property, which the defendant had negligently permitted to remain ‘ ‘ open, exposed and unprotected, without a substantial cover, or any cover whatever being placed over the same, or without a tight fence, or any fence whatever, being placed around the same”; that said shaft “was approximately eight feet long and four feet wide from the bottom thereof to within about five feet of the natural surface of the ground adjacent thereto, at which point the sides of the said shaft spread outwardly until the same reached the natural surface, forming
1. This complaint is attacked as insufficient because it alleges an affirmative act of the plaintiff, to-wit, that he ran into the mouth of the shaft, as a proximate cause of his injury, and does not contain sufficient allegations to negative contributory negligence. The general rule as settled in this state by the
At what age a child becomes' sui juris, so that negligence may be predicated of his acts, is a matter upon which authorities dif
2. Under the allegations of the complaint, the respondent was technically a mere trespasser upon the property of the appellant. (Egan v. Montana C. Ry. Co., 24 Mont. 569, 63 Pac. 831; Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373.) It is the undoubted rule at common law that the owner of real property owes no duty to trespassers, other than to refrain from intentional injury. Hence no right of action would arise, in the absence of statute, in favor of a trespasser who might suffer injury under the circumstances here pleaded (Driscoll v. Clark, supra) ; but every owner holds his property subject to reasonable control and
The question, then, is whether or not a trespasser upon private property may recover damages for injury suffered by him while so trespassing, because of the property owner’s failure to comply with section 8535, Revised Codes. This section is found in Title X of Part I of the Penal Code, under the heading, “Crimes Against the Public Health and Safety,” and, so far as pertinent to this ease, reads as follows: “Every person who sinks any shaft * * * or causes the same to be done, within the limits of any city or town or village in this state, or within one mile of the corporate limits of any city or town * * * and who shall fail to place a substantial cover over or tight fence around the same, is punishable by a fine not exceeding one thousand dollars. The owner of any property * * * shall be deemed to be within the provisions of this Act if he permit any such shaft * * * to remain open, exposed or unprotected upon his property * * * for a period of more than ten days. * * * ” The contention is that this is a mere penal statute, providing its own express sanction, and, in the absence of appropriate language, gives rise to no civil responsibility whatever. ín answer
But it is urged that this principle cannot apply in favor of one not within the purview of the statute by which the duty is imposed, and to this we assent; so that the remaining inquiry is:
In further elucidation of our views of this phase of the present case we quote the language of the supreme court of Colorado from the Richardson Case, supra: “An open, unprotected shaft
3. It is contended by appellants that this case is not within the provisions of section 8535 of the Penal Code, because it was
4. An issue was made in the pleadings as to whether the shaft in question was, at the time of the accident, within a mile of the corporate limits of Butte. One of the grounds of
5. Since this case must be reversed, it is unnecessary to enlarge upon the other assignments of alleged error. Suffice it to say that we see no fault in the other rulings complained of, as they are presented by this record.
The discussion contained in the first part of this opinion settles adversely to appellants the contention that the evidence establishes contributory negligence as a matter of law. We are not prepared to say that, even if plaintiff had been an adult, the evidence would have shown contributory negligence so as to take the case from the jury; and certainly it did not do so as to this infant plaintiff. So, too, we think the evidence was sufficient to establish the damages with as much certainty as is requisite in this class of cases. As to whether it justified the amount awarded by the jury, we express no opinion.
Because of respondent’s failure to submit sufficient proof that the shaft into which he fell was, at the time of the accident, within one mile of the corporate limits of the city of Butte as alleged, the judgment and order appealed from are reversed, and the cause is remanded for a new trial.
Reversed and remanded.