McEnaney v. City of Butte

117 P. 893 | Mont. | 1911

MR. CHIEF JUSTICE BRANTLT

delivered the opinion of the court.

Action for damages for a personal injury which it is alleged the plaintiff suffered by reason of a fall upon a sidewalk on one of the streets of defendant, at a point thereon where there was an accumulation of ice and snow, forming a smooth, slippery and slanting surface. -The plaintiff had a verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.

The sufficiency of the complaint was questioned in the court below, both by general demurrer and by objection to the introduction of evidence at the opening of the trial. The action of the court in overruling the contention of defendant’s counsel in this behalf is assigned as error. After reciting the capacity of the defendant, its possession and control of the streets and sidewalks, etc., the complaint alleges:

“3. That the defendant, disregarding its duty in that behalf, did negligently, carelessly and knowingly allow and permit for a long time prior to the 6th day of February, 1909, water to overflow from the adjoining and abutting property, over and across the sidewalk on the north side of said East Broadway street covering a space of more than ten (10) feet; that by reason of the said overflow of said water, over and across said sidewalk as aforesaid, ice and snow accumulated on the said sidewalk at that point, and formed a smooth, slippery and slanting surface of about ten (10) feet wide.

“4. That said overflow of said sidewalk by said water was negligently allowed to wrongfully exist and had existed with the full knowledge of the defendant for a period of over one year; that said ice and snow formed by reason of said overflow were a source of danger to pedestrians passing on or over the said sidewalk, and during the long period of time which said ice and snow existed, said sidewalk was not protected by any guards, lights, barriers or signals of danger to notify persons traveling upon said sidewalk of the danger caused thereby; and that during all of said time said sidewalk was traveled by great numbers of people, the said sidewalk and street being one of the principal thoroughfares of the said city of Butte, and the said sidewalk was, at this particular point, used by pedestrians traveling thereon both day and night.

“5. That at. and during all the times herein mentioned, the defendant had full knowledge of all the facts and matters herein alleged.”

The following paragraphs allege the particulars and character of the 'injury, and notice to the defendant of the time and place of it, under the requirements of the statute.

Some question is made that the allegations touching the accumulation of ice and snow are insufficient to show that it was such an obstruction as to be a source of danger to persons traveling along the sidewalk; but similar allegations were considered in the ease of Townsend v. City of Butte, 41 Mont. 410, 109 Pae. 869, and were held sufficient.

The contention upon which defendant relies chiefly is, that there is no allegation of fact showing that it was guilty of negligence in failing to remove the alleged obstruction within a reasonable time after notice of its existence. A municipal corporation [1] is held only to the exercise of ordinary care to make and keep its streets in reasonably safe condition. (Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 423; Dillon on Municipal Corporations, 5th ed., sec. 1697; 28 Cyc. 1358.) This being the rule controlling its liability, it is entitled, after notice of a defective condition or of the existence of an obstruction in a street imperiling the safety of persons traveling thereon, to a reasonable opportunity to act in the premises. Hence, before it can be held liable for an injury resulting from the unsafe condition, it must appear that sufficient time has elapsed, after notice, to permit it to act. (28 Cye. 1362; Dillon on Municipal Corporations, 5th ed., sec. 1718.) The notice may be actual or constructive. The celerity of action is necessarily dependent upon the attendant circumstances in each case, vis.: location of the obstruction, use of the street, and the like; but mere knowledge, without any reasonable opportunity to act, does not determine liability. In this class of cases, therefore, liability depending, as it does, upon notice of the alleged unsafe condition and the failure to exercise [2] ordinary care to remedy it, it is necessary to allege facts showing notice at a sufficient interval before the injury, to give the defendant reasonable opportunity to act. In other words, the facts stated must show defendant guilty of a legal wrong in [3] failing to act with reasonable diligence. Tested by this rule, the complaint before us is. insufficient. It is alleged that “at and during all the times herein mentioned, the defendant had full knowledge of all the facts and matters herein alleged.” Read in connection with the preceding allegations, this can mean nothing more than that for some period of time the defendant knew of the accumulation of ice and snow and allowed it to remain without furnishing protection to pedestrians by guards, lights, barriers or danger signals. Was this period of time an hour, or a day or month? The allegation is but a conclusion which the pleader has left unaided by the statement of any specific fact to enable one to determine what the length of time was. Hence the complaint does not contain a statement of facts in ordinary and concise language (Rev. Codes, sec. 6532), and is insufficient to sustain a judgment. It' is true that the length of time during which water was permitted to overflow the sidewalk is specifically stated; but even so, no additional fact is stated justifying the inference that the city, through its officers, must have anticipated that the flow would by the intervention of the weather necessarily result in the formation of a dangerous obstruction, and therefore that it was bound to know the condition of the sidewalk as it was when the accident occurred. A [4] municipality is not required under all circumstances to keep the streets free from accumulations of ice and snow. It must do so only when they imperil life or limb.

The statutory notice served upon the city council is set out in full in the complaint. It is argued that the demurrer should have been sustained, because it appears that the notice was not given by the plaintiff or anyone in her behalf, as prescribed by the statute. (Rev. Codes, sec. 3289.) This contention is without [5] merit. The notice is signed by the plaintiff, “by Canning & Keating, her attorneys.” Upon its- face it purports to have been given in her behalf by the attorneys who brought the action for her. This, we think, is prima facie sufficient.

In view of the foregoing conclusion, it is unnecessary to notice the other errors assigned by the appellant. The judgment and order are reversed, with direction to the district court to sustain the demurrer.

Reversed.

Mr. Justice Smith and Mr. Justice Holloway concur.