142 P.2d 361 | Mont. | 1943
Lead Opinion
The district court erred in holding, in effect, that before any city can be liable for damages to person, for injury received or suffered by reason of any defect or obstruction in a street or other public place, it must first be shown that the city had actual knowledge of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury was received.
It is plaintiff's contention that the city's duty of reasonable care in keeping the streets safe for the traveling public is nondelegable (Nord v. Butte Water Co.,
Primarily the city is charged with the duty of keeping its streets, including the sidewalks, in a reasonably safe condition for travel. (State ex rel. Rocky Mt. Tel. Co. v. Red Lodge,
In conclusion, it is respectfully submitted:
1. That by the ordinance, the city cast its duty to properly guard the excavation upon Burt, and in effect said "We look to you to do these things, without supervision, but if you fail, and the city is compelled to respond in damages, you must indemnify us."
2. That by giving Burt carte blanche authority to do the work and to protect it, without supervision, the City in effect created Burt its agent in the performance of its nondelegable duty to protect the traveling public.
3. That Chapter 122, Session Laws, Montana, 1937, was not *252
intended to cover defects or obstructions occurring from positive and affirmative action, but rather those defects and obstructions occurring by reason of deterioration and decay and in the usual and ordinary usage of streets.
Appellant has not alleged notice to the city of the defect in the boulevard as required by Chapter 122, Session Laws, 1937, but has alleged a course of conduct on the part of respondent of following an accepted usage, custom, and method of procedure of not requiring a permit to open up, dig into, excavate in any of the streets of the city. This custom is alleged to show that actual notice of the existence of the defect was not necessary. She also alleges the custom of leaving the hole, at the point of contact with the city's water mains, open until the respondent could make the connection; neither of these customs and usages is admissible of proof. (Penn v. Oldhauber,
Chapter 122 Laws of 1937 is constitutional. (Forsyth v.Saginaw,
*253
The appellant has cited cases to the effect that the city's duty of reasonable care in keeping the streets safe for the traveling public is non-delegable. It is unquestionably true that the city cannot relieve itself of its duty or corresponding liability by delegating to others the right to make excavations or create hazards in the public streets. However, the fact that the duty is non-delegable does not make the municipality liable under all conditions. The municipality is not an insurer of the safe condition of its streets, sidewalks and crossings and is bound only to use reasonable care to keep its streets and sidewalks in a reasonably safe and good condition for travel. (Martin v. City of Butte,
Although it is not pleaded or alleged in plaintiff's complaint that Myron C. Burt was a licensee of the City of Billings, or a permit holder, to refute appellant's brief and argument, even ifit could be found that he was, it is the position of the respondent that, nevertheless, there is no liability on the city unless there is actual notice and an opportunity to repair the defect and that consequently the complaint does not state a cause of action. The rule is stated in 43 C.J., p. 994.
The grant of a license does not make the licensee the servant or agent of the municipality so that it will be responsible for their acts. (Fifield v. Phoenix,
Plaintiff has not only failed to plead actual notice, but has also completely failed to allege that the city had a reasonable opportunity to remedy the defect. Plaintiff brought action against the city of Billings to recover for personal injury sustained in a fall into an excavation in one of the city's streets. A general demurrer to the complaint was sustained, and judgment entered thereon for defendant from which plaintiff has appealed.
The complaint is lengthy, with pleading of city ordinances relating to building permits and excavations in the streets and allegations as to general practice followed by the city officials in respect to the regulations provided for therein. The fact allegations as to what occurred and as to the negligence relied on as ground of recovery are substantially as follows:
The excavation into which plaintiff fell was in a parking strip between the sidewalk and the curb. It was directly in front of a lot on which a new house was under construction and had been made in laying a water pipe and making connection with the city water main. It was covered over with loose boards and planks. The parking was faced with a concrete curb next to the street paving but was not yet surfaced with grass and was muddy.
It was in the daytime, 9:45 in the morning of October 3rd. Plaintiff, alighting from an automobile in the paved street, undertook to cross over to the sidewalk, and walking on the boards and planks over the excavation, fell in and was injured.
The excavation was about six feet deep and large enough in other dimensions for a man to work in. The connection with the water main had been completed by the plumber and the excavation *255 had been left partly open for inspection to be made by the City Water Department, as was the practice in making such water service connections. There were no warning signs and no guards or covering other than the loose boards and planks laid over the hole. The negligence complained of against the city was its failure to see to it that those making the excavation would have it securely covered and have signs, markers or signals placed there to warn pedestrians, and in that the city itself had failed to cover the excavation securely and to erect such warning signs. Negligence is also predicated upon the failure of the city to close the excavation as soon as possible after completion of the work for which it had been opened.
The error specified is the sustaining of the demurrer and the entry of judgment for the defendant. The sole question presented is whether the complaint states a cause of action.
Counsel on both sides have treated the case upon the premise of the excavation as creating a condition of the street which was dangerous to pedestrians and the injury sustained by the plaintiff as being the direct result thereof. The whole argument has been upon the question of responsibility for the condition of danger in the street and whether the city was involved to the extent that it is liable for the damage. In that aspect of the case the decision would rest on the question of notice and knowledge of the condition by the city, for it is its duty to keep the streets and all public ways in reasonably safe condition for travel.
The rule is that for any dangerous condition of the streets[1] brought about by the city itself it is responsible, and for any such condition brought about other than by acts done by the city itself the city's responsibility arises upon notice thereof, and for injury resulting to anyone therefrom it is liable only if it "had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received." It is so provided by Chapter 122, Laws of 1937, amending section 5080 of the Revised Codes of 1935.
For the application of the rule we must first have a case to *256 [2] which it applies. The city is not an insurer of absolute safety to pedestrians in the use of the streets and other public ways, nor is it liable for injury sustained by pedestrians because of their own carelessness in traveling where there may be danger of injury to them. And so here it is necessary first to determine whether the facts as related in plaintiff's complaint show that the excavation in the place where it was and the condition in which it was left could be reasonably said to be of danger to pedestrians, and that the injury sustained by the plaintiff was caused by the failure of the city to warn pedestrians against the danger.
The excavation was in the parking where pedestrians do not ordinarily walk. It was between the sidewalk and the paved street and there was no necessity for anyone to walk there. A person walking on the sidewalk or in the street would be in no danger due to the excavation being in the parking. On the abutting lot a new house was under construction with the premises generally torn up and in an unfinished condition. The excavation was freshly made and there must have been the dirt from it piled up alongside. The hole was of a size large enough for a man to work in and was covered over with loose boards. There was no necessity for anyone walking across at this particular place and there was nothing about the situation there, as disclosed by the complaint, as being suggestive of the boards being laid there for that purpose. In fact, it could not reasonably be assumed that a prudent person would choose such a place to walk in view of the muddy, torn-up condition of the premises generally. Even if the city officials knew all about the excavation and had seen it in the condition it was in on October 3rd, we cannot see any negligence in their failure to place more secure covering over it nor in failing to erect barriers and warning signs to keep pedestrians from walking over it. At night, warning lights might reasonably have been required to guard against anyone unknowingly coming upon it. But we are not concerned about the condition there at night. This was in the forenoon of the day, in broad daylight. Everything was open to view. Warning *257
signs were not necessary to tell of what was there. It could all[3] be seen. When the conditions on the ground are plainly visible and are themselves a warning of danger, barriers and warning signs are unnecessary to ward off pedestrians. (Lombardi v. Bates Rogers Const. Co.,
Plaintiff, alighting from an automobile on the paved street in[4] the vicinity of the excavation wanted to get on the sidewalk. Between the street paving and the sidewalk was the strip of unfinished parking, without grass and muddy. There was the excavation with boards laid over it. Plaintiff, rather than going to the corner crossing to reach the sidewalk, chose to walk on the boards over the excavation. She was in no way misled. What she did was of her own volition. It was at her own peril that she chose this way of reaching the sidewalk. For any injury resulting to her in walking where she did, she cannot lay the blame on the city. (O'Laughlin v. The City of Dubuque,
The infirmity of plaintiff's case is shown by the complaint itself in that it appears her own negligence was the proximate cause of the injury. No cause of action is stated and the demurrer to the complaint was properly sustained. (Armstrong v.Billings,
The judgment of the lower court is affirmed.
MR. JUSTICE MORRIS concurs. *258
Concurrence Opinion
I concur in the result reached in the above opinion, but not in the reason therein stated. My concurrence in the result is impelled entirely by my conclusion upon the sole point argued by counsel here and in trial court, namely, whether under section 5080, Revised Codes, as amended by Chapter 122 of the 1937 Session Laws, the complaint states a cause of action, assuming that in other respects actionable negligence is shown. Unless we first find that the case meets the requirements of the statute we do not reach the question of negligence.
The section as amended provides that "before any city or town * * * shall be liable for damages" for accidental injury "suffered by reason of any defect or obstruction" in street, park, etc., "it must first be shown that said city or town hadactual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received * * *." The provision completely covers the field in question, and constitutes an enactment that unless actual notice, not constructive or substituted notice, is had, the city shall not be liable.
Only one exception is made; and that is by the proviso excepting from the effect of the statute cases in which the injury arose from "failure to properly place signs, markers or signals" to give warning of excavations and obstructions "caused by said city or town, * * *." The proviso relates, not to all cases in which the excavation or obstruction was caused by the city, but only to such cases in which the city also failed to give warning by means of "signs, markers or signals." It would seem, however, that in all cases in which the excavation or obstruction was caused by the city, it necessarily had actualnotice thereof. Thus, if the excavation was caused by the city, it would seem to be liable either under the main clause or the proviso, since it would have "actual notice" and since it placed no "signs, markers or signals." However, it seems clear to me that the excavation was not caused by the city.
Some cases can be found which hold, not that by issuing permits *259 the city receives actual notice of the excavation, but that it thereby becomes a joint actor in the making of the excavation, thus becoming a joint cause of the excavation. But it is not logically correct to say that by issuing a permit the city causes the excavation; for if words mean anything the city's issuance of the permit does not cause the excavation. The permit is merely a prerequisite, required by ordinance, to the private contractor's act of causing it, and obviously does not make the city a joint actor in the contractor's private enterprise, nor constitute a proximate cause of the excavation.
If the city were in this case liable under the statute, it must logically be because the application for and issuance of the permit gave actual notice of the excavation, and not because it made the city a joint actor and thereby made actual notice unnecessary in spite of the statute.
But the complaint affirmatively shows that no permit was sought nor issued for the excavation in question. It pleads Section 539 of Ordinance No. 1177 of the city of Billings, forbidding any person to excavate in any street or public place without first obtaining a permit and filing a bond, but providing that a yearly bond may be furnished; and also Sections 201, 202 and 203 of Ordinance No. 1162, forbidding the construction of any building without a permit therefor. It then pleads "an accepted usage, custom and method of procedure" by city employees by which upon the issuance of a building permit to anyone, excavations in streets and public places "could be carried on and done without issuance" of the written permit required by Ordinance No. 1177, "providing the work was done by a person who had filed" a yearly bond as provided by Ordinance No. 1162; and pleads the filing of such bond by one Myron C. Burt and the issuance of such building permit to one E.G. Balsam. It further pleads that by reason of those facts "the said defendant had actual notice" that Balsam or someone else would make an excavation.
Thus the plaintiff's theory is that if there is liability it is on the ground that the city had actual notice of the excavation because *260 of the issuance of the building permit; and that the building permit gave it such notice, in spite of the requirement of a special excavation permit, because the city employees had adopted "an accepted usage, custom and method of procedure" contrary to the ordinance. The argument is that although the ordinance required a permit for such excavation, and no such permit was obtained in this instance, the building permit and the unauthorized administrative usage and custom had the same effect of actual notice as the required permit would have had. But the issuance of a building permit is notice that a building is to be constructed, not that an excavation is to be made. The argument may be made that since the residence could not be used without water connections the building permit gave notice of the excavation for that purpose; but (1) the residence might have been erected on the site of a former one for which such connection already existed, so that no excavation would be necessary; and (2) in any event the ordinance required a special permit for that purpose without exception, the legal duty was on the excavation contractor to obtain such special permit before making the excavation even though some other contractor had perhaps obtained a building permit, and the city had the right to assume that he would comply with the ordinance. Certainly the building permit gave the city no notice that an excavation would be made in violation of the ordinance, and it imposed upon the city no duty, during all the months in which the building was being constructed, to patrol the premises lest an excavation be made by someone without the required permit. Nor can the permit for the construction of a building by one contractor logically make the city a joint actor with another contractor in digging a hole, or make the city "cause" the excavation.
The situation cannot be altered by the unauthorized "usage or custom" of certain administrative employees in failing to require the permit made mandatory by the city's legislative authority. That unauthorized procedure cannot give the city actual notice, nor nullify the legislative enactments of city and state.
These things being true, it seems clear to me that since, with *261 the circumstances alleged, the city did not cause the excavation, and since it had no actual notice thereof prior to the accident, the statute made the city immune from suit for damages regardless of whether in other respects actionable negligence was alleged. Whether or not we agree with the declared legislative policy of municipal immunity is of course not material.
Dissenting Opinion
The complaint alleges: That the accident complained of occurred on October 3, 1941, on Beverly Hills Boulevard, an improved public street in Billings, which street was then in a muddy condition; that in walking from an automobile stopped in said public street to the sidewalk in said street, plaintiff stepped upon some boards or planks in the street; that the boards covered an excavation in the street six feet in depth; that such boards were loose and that as plaintiff stepped upon them the boards slipped and plaintiff fell into the excavation receiving the injuries which she specifically describes and for which she brought this action for damages against the city; that on November 8, 1941, being within sixty days after receiving such injury, plaintiff caused to be filed with the city clerk a written notice of said injuries which notice was on that day presented by said city clerk to the city council of the defendant city, said council then being regularly convened.
The complaint also alleges that on August 2, 1941, a written permit was issued by the building inspector of the defendant city to one E.G. Balsam to construct a dwelling house at 306 Beverly Hills Boulevard; that Balsam, through William M. Willis, a contractor, commenced to construct the house; that Willis let a subcontract to Myron C. Burt, a plumber, for installing the plumbing and connecting same with the water main of the defendant city; that thereupon Burt entered into and upon the work of installing the plumbing and making connection with the water main of the defendant city and in doing so he made the excavation in the street in front of said Balsam premises and laid the water pipe therein from said dwelling to where connection is *262 made with the water main; that Burt completed the work before October 3, 1941, but that he carelessly failed to close the excavation, or, reasonably to protect it by placing a secure protection and covering over it; "but instead negligently and carelessly covered said excavation by laying loose boards or planks over said excavation, and the said Myron C. Burt also negligently and carelessly failed to place signs, markers or signals of any kind at said excavation to warn persons of said excavation, and the said defendant having actual notice of said excavation, by reason of the facts aforesaid and the usage, custom and practice aforesaid, which constituted a permit for the said Myron C. Burt to open up, dig into, excavate or tunnel in said boulevard, and said defendant having had reasonable opportunity to close said excavation, or to reasonably protect the same by placing secure protection and covering over said excavation or by placing signs, markers or signals there to warn persons of said excavation, before injuries were received by plaintiff, as hereinafter set forth, said defendant negligently and carelessly omitted its duty to see that said excavation in said boulevard was closed by back filling, tamping or puddling of said excavation, as soon as possible after the completion of the necessary work of said excavation, or within a reasonable time thereafter, or at all, and said defendant negligently and carelessly omitted to see that said excavation was reasonably protected by placing secure protection and covering over said excavation, but instead negligently and carelessly permitted the said Myron C. Burt to cover said excavation by laying loose boards or planks over said excavation, and said defendant negligently and carelessly failed to see that signs, markers or signals were placed at said excavation to warn persons of said excavation, and as a proximate result of the negligence of the said Myron C. Burt and of the defendant, as aforesaid, the said plaintiff suffered and sustained the damages hereinafter set forth."
The complaint further alleges that before commencing the work or making the excavation, Burt, the plumber, in compliance with a city ordinance, on February 19, 1941, had posted a bond *263 or undertaking with the defendant city to save the city harmless from damage or injury to persons or property by reason of Burt's failure to properly guard any excavation made by him in the city and by reason of failure, as soon as possible after the completion of the necessary work, to restore the street to as good condition as it was in the beginning; that said undertaking or bond was thereafter approved and accepted by the city council of the defendant city and that thereupon the plumber Burt was authorized and empowered to open up, dig into, excavate or tunnel in any of the streets, avenues, public places or alleys of the city of Billings for a period of one year from and after the 19th day of February, 1941, upon obtaining a permit therefor from the city.
The foregoing allegations, in my opinion, are sufficient to state a cause of action.
In McQuillin, Municipal Corporations, Vol. 7, section 2908, page 24, the author says: "To create a cause of action against a municipality due to a defective public way the elements are: (1) The duty to exercise ordinary care to keep its public ways in a reasonably safe and convenient condition for travel in the usual modes by day and night; (2) the violation of that duty, as evidenced by the unsafe condition of the public way at the place of the accident; and (3) the injury to the plaintiff." (See Cityof Woodward v. Bowder,
In Brennan v. City of Kalispell,
The injuries complained of in the Brennan case, supra, were suffered prior to the enactment of Chapter 122 of the Session Laws of 1937 termed the "notice statute." This Act of the legislature deals with two kinds of notice. The one kind of notice *264 is that which the injured person or someone in his behalf must give to the proper city authorities "within sixty days after such injury is alleged to have been received or suffered." The complaint here fully alleges the giving of such notice.
The other notice mentioned in Chapter 122, Session Laws of 1937, is actual notice of the defect or obstruction, which notice is to be given before the happening of the injury or damage. It is not, however, necessary in all cases that the city receive actual notice of the defective condition in advance of the happening of the accident or the sustaining of the injury for liability to attach.
"If the defective condition is due to the act of the municipality itself or of its contractors or employees, no other notice of any kind, either actual or constructive, is necessary in order to render the municipality liable for damages proximately caused thereby." (City of Grandview v. Ingle, Tex. Civ. App. 1936,
So too, actual notice of the existence of the defect is not required where as is here alleged the city had issued a permit or order or otherwise authorized another to enter upon and tear up a public street for his private use. (See Spiker v. City ofOttumwa,
"Primarily the city is charged with the duty of keeping its streets, including its sidewalks, in a reasonable safe condition for travel." (Nord v. Butte Water Co.,
The majority opinion says: "The complaint contains no allegations of the exercise of care by the plaintiff." It is most elemental as well as fundamental and long recognized by this court: (a) That contributory negligence is a matter of affirmative defense; (b) that, being an affirmative defense, to be available it must be specially pleaded as such by thedefendant (Meisner v. City of Dillon,
The majority opinion from a mere reading of the complaint also finds that plaintiff, rather than going to the corner crossing to reach the sidewalk, "chose to walk on the boards over the excavation," and that her pleading affirmatively shows that it was her own lack of care, rashness and negligence in undertaking to walk where she did that was the proximate cause of her injury. I do not think that it is within the province of either the trial *266
court nor of this court to adjudge and determine on the bare allegations of the complaint, with no answer filed and no evidence taken, that the plaintiff's conduct amounted to negligence or that such conduct was the proximate cause of the injury. In Bensley v. Miles City,
In Tyler v. City of Richmond,
In Spiker v. City of Ottumwa,
"The answer to such questions is a matter of fact to be drawn by the jury as a conclusion from all the admitted and proven circumstances. There is no rule by which failure to look out for or discover danger when there is no reason to apprehend any, can rightfully be held contributory negligence as a matter of law. (Downing v. Merchants' Nat. Bank [
This court in Ernst v. City of Helena,
In my opinion the complaint is good as against the general demurrer interposed and it was error to render judgment against plaintiff.
Dissenting Opinion
I concur in the dissenting opinion of MR. JUSTICE ADAIR, but in view of the theory upon which the case was argued in this court, I desire to add the following:
The case was presented to the district court and to this court upon the principal question of the application of section 5080, Revised Codes, as amended by Chapter 122 of the 1937 Session Laws. So far as here pertinent that section appears in the special concurring opinion of the Chief Justice. It is well settled in other jurisdictions that when a city grants a permit to make an excavation, then the city becomes a joint actor with the person making the excavation, because of its nondelegable duty to keep the streets in a safe condition. (Spiker v.Ottumwa,
Section 539 of Ordinance 1177 of the city of Billings provides that no person may dig into a street without first having obtained a permit and without having filed a bond. It also provides that plumbers may furnish a yearly bond. In the instant case the one who made the excavation had furnished the yearly bond but had made no application for a permit to make the specific excavation. Sections 201, 202 and 203 of Ordinance No. 1162 provide for a building permit before a building may be constructed. The excavation in question was for the purpose of connecting a building under construction to the sewer line in the street. A building permit was secured to build the building under construction. Under the ordinance the application for the building permit must show in detail the plans for the building. Those plans would necessarily show that the building is to be modern and *269 that connections with the sewer and water must be made. The purpose of the building permit is to give the city notice of the fact that the building is to be built, and further to give the city an opportunity to inspect it during the course of building. It is reasonable to suppose that in granting the permit the city authorized the builders to complete it and to make the building as usable as the plans called for it. It would be ignoring common sense to say that the city, when it granted that permit, did not become aware of and authorize the permit holder to make whatever connections were necessary with the public utilities, including the sewer line and water line. By its action in fixing the building permit the city knew that the excavation would be necessary, and, to my mind, authorized the making of those excavations. It was within the power of the city, acting under the law, to issue a building permit. Its action in doing so was not ultra vires. The failure of the plumber to secure the permit as contemplated by section 539 of Ordinance No. 1177 in no way affects the legality of the acts of the city in issuing the building permit. It seems to me the cases cited hereinbefore are applicable and the complaint states a cause of action even though no allegation of compliance with Chapter 122 of the Laws 1937 appears.
Rehearing denied November 12, 1943.