25 Mont. 391 | Mont. | 1901
after stating the case, delivered the opinion of the Court.
1. When plaintiff had concluded the introduction of evidence, counsel for the defendant moved the court to direct a verdict in his favor on the ground that the complaint did not state a cause of action against him, for the reasons that the duty, if any, to remedy any defect in the street occasioned-by the excavation therein by the water company, was a duty owing to the city of Helena, and to no one else, and that there was no duty resting upon the defendant to remedy such defect. The court overruled the motion, and defendant assigns error.
Subsection 73 of Section 4800 of the Political Code provides: “The city or town council has power: To permit the use of streets and alleys of the city or town for the purpose of laying' down gas, water and other mains, but no excavation must be made for such purpose without the permission of the council, and the streets and alleys must be placed in as good condition by the person making the excavation as they were before the excavation was made, and the mains laid down, and in default thereof the council may order the same to be done at the expense of such person.”
The argument of counsel upon the first ground of motion is that under the statutes of Montana governing the organization of cities, and from which they derive their powers, exclusive, jurisdiction over and the right to control the streets and alleys rests with the city; that the council may, under the provision quoted, grant permission to a water company to make such excavations in the street as the nature of its business requires, but that the primary duty to- the public to properly fill such excavations and res (re the streets to' their former condition is cast in each instance upon the city, and not upon the corpora
An unauthorized excavation or other obstruction in a street is a public nuisance per se. None the less does one made by permission of the city, or under authority of a license or contract, become a nuisance, if it is left unguarded during the progress of the work, or if the street is not restored to its original condition when the purpose of the excavation has been accomplished. In the latter case the doing of a lawful thing in an unlawful way makes it a nuisance, in the same way as - if it Avere a nuisance in the beginning.
Under the section of the statute quoted, the city council had the power to- grant to the water company the right to lay its pipes and mains. This carried with it the obligation to keep
If the injury complained of here had occurred before the water company surrendered its property to the receiver, it is idle to. say that the water company would not have been liable. In the light of the principles stated, it was its duty not only to restore the street to the condition in which it found it, but also thereafter to anticipate and guard against the effect of natural causes which would probably operate to render it again
Substituting the water company as defendant in place of the receiver, the allegations in the complaint are sufficient to state a cause of action against it.
The argument upon the second ground of the motion is that, as the receiver did not cause the defect in the street, he cannot be held liable, no matter what liability may attach to the water company. It is undoubtedly the rule that a receiver cannot 'be held liable for an injury occasioned by a wrong or neglecc of duty by the corporation whose property has subsequently been placed in his hands. A receiver is the arm of the court; the property is placed in his hands for safekeeping pending the litigation; but if under the direction of the court he continues the business of the corporation, his duty and liability begins from the date at which he assumes control and begins his operations. He is substituted for the corporation, and from that moment he assumes toward the public the duties and liabilities of the corporation. If the property is out of repair, and a due regard for public safety requires it to be put in repair, the duty is cast upon him, and for the neglect of such duty he becomes liable to any person injured by such neglecc. Undoubtedly the ordinance granting the franchise to the water company to lay pipes and mains in the streets of the city was in the nature of a contract between the company and the city, the consideration of which on the part of the company was that the company would in each instance restore the streets to the condition in which it found them. In receiving the franchise it undertook to perform the resultant duty to the city of restoring the streets. (People v. Chicago & A. Railroad Co., 67 Ill. 118 ; Village of Port Jervis v. First Nat. Bank of Port Jervis, supra.) A failure on its part in this duty to the city necessarily resulted in the creation of a nuisance. The assumption of the business of the company by the receiver carried with it the assumption also of all the duties owed by the water company to the city as well as. to the public. If the excavation in ques
2. The court having refused to direct a verdict on the grounds just discussed, counsel then moved for a dismissal of the action on the ground that it did not appear either from the allegations in the complaint or from the evidence that the plaintiff had first obtained from the Hnited States circuit court leave to sue its receiver. Counsel argue that, as an attempt is made in this case to hold the receiver for a wrong done by the water-company, and not “in respect to any act or transaction of his in carrying on the business connected with” the property of the company, permission to bring the action should have been obtained. This contention proceeds upon the same theory as that involved in the second ground of the former motion. Of course the lower court should have sustained this motion, as
3. Counsel further contend that even if it be- conceded that the receiver was properly made defendant, instead of the water-company, the court erred to his prejudice in several of the instructions submitted to the jury.
It appears from the evidence that on or about December 21, 1896, one of the mains of the water company on Eleventh avenue near its intersection with Ealeigh street had sprung a leak. The company, having been notified, sent workmen to repair it. To do- so it was necessary to excavate a trench down to the main and about seven feet along the- street. The main was near the sidewalk. At that season the weather was cold, and as fast as
Upon these facts the court submitted to the jury, among other 'instructions, the following, in substance:
(1) That under the ordinance of ;the city of Helena the
(2) That the defendant receiver had the same right to- open the streets, and was under the same obligation to restore them to their former condition within a reasonable time; and that it was further his duty, in case the water company had before he became receiver opened the streets at any place, and had not restored them to as good condition as they were before, to put them, at the places so opened, in as good condition as they were before, provided he knew, or by the exercise of reasonable diligence ought to have known, that such street had been at any place left in a defective condition.
(3) That it was not necessary, in order that the plaintiff recover in this action, that it appear that the defendant had, or ought to have had, personal knowledge of the defect claimed to have existed in the street; but if the agent or servant of the defendant, as receiver, who was charged with the duty of restoring the street to' its former condition in case it needed work of that character, knew, or in the exercise of reasonable diligence ought to have known, of the defective condition of the street, the law imputes knowledge of the condition of the street to the defendant, and in such case the plaintiff may recover.
(4) That it was the duty of the defendant himself to acquire knowledge, so far as the same could be acquired in the exercise of reasonable diligence, of any defects in the street occasioned by the water company, or to depute some agent or servant to do so; and if in the exercise of reasonable diligence such agent or servant ought to have known of the defect, then the defendant as receiver became liable to any person having suffered any injuries in consequence of such defect, if, within a reasonable time after its discovery by such agent, the defect is not remedied.
It is said in criticism of the first paragraph of these instructions that it is physically impossible to so fill an excavation in a street as to restore the earth to its former condition. We do not think that as a matter of law this is true. It may he that under some.circumstances of season'and locality the statement would hold good, but ordinarily it would not. The ordinance was not introduced in evidence, but it is admitted in tbe answer that the complaint sets it out according to its substance. We presume therefore that it enjoins no greater burden than does the section of the statute quoted, which authorizes it. In any event the statute declares the duty of the company to he to place the streets in as good condition as they were before the excavation was made. Construed according to its obvious meaning, it requires the streets to he restored to their former safe condition. To s.ay that tbey must be put in identically tbe same condition would indeed require the performance of an impossibility, for nothing short of divine power could do this. Barring natural difficulties at certain seasons interfering with
The same criticism upon paragraphs 2, 3, and 4 is disposed of by the remarks just made upon paragraph 1.
Complaint is also made that paragraphs 2, 3, and 4 are in direct conflict with paragraph 5, in that the former state the correct rule as to the degree of cafe to be exercised by the receiver to discover the condition of streets after assuming control of the water plant, while the latter is altogether erroneous. That the conflict exists is clear, and it is impossible to reconcile it; but it does not therefore follow that the' defendant is entitled to a new trial. The rule is recognized by this court that where the instructions are upon a material point* and are in conflict, a new trial will be granted, unless it also appears that the defendant has suffered no prejudice. (State v. Rolla, 21 Mont. 582, 55 Pac. 528; Heilbronner v. Lloyd, 17 Mont. 299, 42 Pac. 853.) If, however, the conflicting instructions are upon an immaterial point, and it is not reasonably apparent that the jury have been misled, a new trial will not be granted. In our opinion it is not a material question in this case whether the receiver had notice of the condition of Eleventh avenue at the time of the accident. It is not sought to hold him personally liable for any act of willful neglect, but merely to hold him, as the successor of the water company, for an omission of duty in his trustee capacity. At the time he entered upon the discharge of his duties the defect in the street existed. He took the franchise of the company and its property, and continued its operations. The duty to restore the street was a continuing one. The company was, by the order appointing him, stripped
It is urged by appellant that only reasonable or ordinary ■diligence should be required of the company, or the defendant receiver, to guard against injury caused, by defects, in the street such as the one in question; and counsel cite King v. Miles City Irrigating Ditch Co., 16 Mont. 463, 41 Pac. 431, 50 Am. St. Rep. 506; Hopkins v. Butte & Montana Commercial Co., 13 Mont. 223, 33 Pac. 817, 40 Am. St. Rep. 438, and Sweeney v. City of Butte, 15 Mont. 274, 39 Pac. 286. But all of these cases are easily distinguishable in fact and principle from the present case. In King v. Miles City Irrigating Ditch Co. the question involved was the degree of care required of a ditch owner to keep his ditch in repair so as to prevent the water from breaking over and overflowing his neighbor’s land. It was held that the defendant was not an insurer, but should be held to the ■exercise of ordinary care in the management of his ditch. Hopkins v. Butte & Montana Commercial Co., was an action for •damages against defendant resulting from an overflow of water •occasioned by a jam of logs which he was engaged in floating -down a stream through plaintiff’s ranch to its mill. It was held that the defendant ivas engaged in a lawful business, and that it was bound to use ordinary care only to prevent injury to the lands of the plaintiff during the pursuit of its business. The principle of these cases does not apply to the present case, for the reason that the water company lias no right to make any
Several other questions were presented in the argument, but the alleged errors upon which they are based are not of sufficient merit to demand notice.
Let the judgment and order denying the motion for a new trial be affirmed.
Affirmed.
Motion for rehearing denied July 1, 1901.