29 Mont. 116 | Mont. | 1903
after stating the case, delivered the opinion of the court.
The evidence tends to show that on the evening of July 22, 1899, the plaintiff and his daughter were driving on the streets of Dillon in a buggy to which was attached one horse; that without any fault on the piart of the plaintiff the horse became frightened and unmanageable and ran away; that at the intersection of Montana and Virginia streets the city had lately con
While this theory of the law has the support of very respectable authority, we prefer to follow the doctrine which appears to be supported by the weight of authority and the better reasoning, viz., that where two causes contribute to an injury, one of which is directly traceable to the defendant’s negligence, and for the other of which neither party is responsible, the defendant will be held liable, provided the injury would not have been sustained but for such negligence. (Lundeen v. Livingston E. L. Co., 17 Mont. 32, 41 Pac. 995 ; Elliott on Roads and Streets, Sec. 615; Chicago & N. W. Ry. Co. v. Prescott, 59 Fed. 237, 8 C. C. A. 109, 23 L. R. A. 654; Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. 481.) Thei question for determination in this instance was not whether defendant’s negligence was the
The doctrine here announced is, very fully set forth in Union St. R. Co. v. Stone, 54 Kan. 83, 31 Pac. 1012, in an action the facts of which are very similar to> the facts in the case at bar. The court in part says: “It is urged that there is no liability on the part of the railway company or the city of Winfield for the negligent defect or obstruction of the street, as, the runaway team concurred in producing the injuries of Mrs. Stone,. This is the rule in Massachusetts, Maine, Wisconsin, and West Virginia ; but the contrary is held by the courts of New York, Pennsylvania, Georgia, Missouri, Indiana, Connecticut, New Hampshire, Vermont and Texas. Elliott, in his recent work on Koads and Streets, says,: ‘According to the weight of authority, the city is liable where a horse takes fright, without any negligence on the part of the driver, at some object for which the municipality is not responsible, and gets beyond the control of his driver, and runs away, and comes in contact with some obstruction or defect in the road or street Avhich the city has been negligent in not removing or repairing, if the injuries would not have been sustained but for the obstruction or defect.’ -x- * *- ygQ prefer tó follow the general weight of authority, and therefore cannot adopt the rule that cities are not liable for injuries to a runaway horse or his, owner occasioned by an obstruction or defect in the streets.”
The evidence shows that Montana street is about sixty feet wide; that it is one of the principal thoroughfares of the city of Dillon, and, so far as anything to the contrary appears, is open to public travel throughout its entire width. Taking the view most favorable to the defendant, the question whether the portion of the street in repair was of sufficient width to render the street reasonably safe for public use was one for the jury’s determination under proper instructions. (Union Street Ry. Co. v. Stone, above; Walker v. City of Kansas, 99 Mo. 647, 12 S. W. 894; Saylor v. City of Monte sano, 11 Wash. 328, 39 Pac. 653.) We hardly think it can be said as an abstract proposition of law that “a city is not required to' keep all parts of its streets and the entire width of its streets in good condition and repair.” The correctness or incorrectness of that in any given instance depends upon a variety of circumstances, which can hardly be said to' be fairly treated in defendant’s instruction No. 3. We think the court fairly presents the matter to the jury in instructions Nos. 4 and 5, which read as follows: “No. 4. You are instructed that the defendant corporation is bound by law to1 use all reasonable care, caution and supervision to- keep- its streets in a safe condition for travel in the ordinary mode of traveling, and if it fails to do so- it is liable for injuries sustained in consequence of such failure; provided the party injured is himself exercising rea
The order overruling defendant’s motion for a new trial is affirmed.
Affirmed.