26 Mont. 128 | Mont. | 1901
delivered the opinion of the court.
Action to recover damages for bodily injuries alleged to have been caused by the negligent omission of the defendant to keep one of its streets in repair. Verdict for $2,000. The defendant appeals from the judgment and from the order denying its motion for a new trial.
: 1. The alleged facts stated in the complaint are, in substance, ¿s follows: The defendant, - a municipal corporation, is a city of the second class. One of its duties is to maintain its streets in safe condition. Long before the time of the accident to the plaintiff, the defendant by ordinance assumed the duty mentioned, established public streets, created the office of street commissioner, and imposed upon and delegated to him the duty of keeping the streets in repair. Chestnut street is, and for many years prior to the accident has been, a duly-established street and a common thoroughfare under the control and management of the defendant. On this street was a bridge, placed and maintained there by the defendant. About the 5th day of April, 1891, the bridge became out of repair and was washed away, leaving a deep cut across the street, which was dangerous to the life and safety of any person who might travel over the street at night, the existence of which cut was known, or ought to have been known to the defendant and its officers. With full knowledge of the destruction of the bridge and. the existence of the cut, the defendant negligently and wrongfully permitted the bridge to remain out of repair, and the cut to remain unprotected and uncovered, and wrongfully and negligently failed to place any light or signal on or about the cut to warn persons traveling over the street of the dangerous condition thereof. On the night of Sunday, the 18th of April, 1891, while the cut was in the street and while it was negligently exposed and left unguarded and without any light or signal of any nature whatsoever to warn persons traveling on the street of the danger, the plaintiff was lawfully traveling on the street and was wholly unaware of any danger and of the presence of the cut, and while lawfully riding a
To the complaint the defendant demurred for insufficiency, contending: First, that a municipal corporation proper, such as-the defendant, is not liable for negligence in the care of its streets; and, second, that the complaint shows the proximate cause of the injury to have been the plaintiff’s own act, and does not allege that such act was done in the exercise of reasonable care. The demurrer was overruled, and this action of the court is the first error specified.
The defendant, the city of Anaconda, was organized under provisions which now appear in Chapter XXII of the Fifth Division, General Laws, Compiled Statutes of 1887. By Section 325 of that Chapter the defendant, through its council, was empowered to lay out, establish, open, alter, widen, extend, pave, or otherwise improve the streets within its limits; and by Section 435 the exclusive control of the streets was a power confided to the city. The same Chapter provides means, through taxation, by which these powers may be exercised. Similar powers are granted by Sections 4800, 4875, 4876, 4877, 4878, 4879 and 4880, of the Political Code. Section 4700 provides that “a city or town is a body politic and corporate, with the general powers of a corporation, and the powers specified or necessarily implied in this title, or in special laws heretofore enacted.” The power to repair, coupled with the exclusive control of the streets, made it the ministerial duty of the city to exercise ordinary care to the end that the streets might be reasonably safe for travel. The duty thus imposed is not legislative or judicial in character, but ministerial. Having the power to keep its streets in repair, the defendant was bound to exercise it. The duty corresponds with, and is not less than, the power. For failure to perform that duty the defendant is liable to any one who, without fault on his part, suffers injury thereby. We had supposed that the liability of
Nor is the other objection tenable. In Kennon v. Gilmer, 4 Montana Reports, 433 (2 Pac. 21), it was held that where the complaint shows that the proximate cause of the injury was the plaintiff’s own act, he must allege (and prove) that in thus acting he was free from negligence. The complaint in the case at bar does not show, either directly or indirectly, that the proximate cause of the injury was the act of the plaintiff. This is a sufficient answer to the objection; another is that the complaint states that the accident occurred and the injury was received “without any fault or negligence on plaintiff’s part.” Under these circumstances contributory negligence is a matter
2. It is claimed tbat tbe damages awarded were excessive. After a careful examination of tbe evidence we find it to bave been sufficient to justify tbe verdict.
3. It is next insisted tbat there was no proof of negligence on the part of the defendant. Suffice it to say tbat tbe evidence tending to show a want of ordinary care on tbe part of the city was ample.
4. Several days after tbe accident tbe plaintiff bad a conversation with tbe street commissioner in which the latter said tbat be knew tbe bridge was down, tbat be saw tbat tbe bridge was gone, and that be intended to repair it on tbe Monday subsequent to the accident. To tbe introduction of this testimony tbe defendant objected on the ground tbat tbe city could not be bound by any. statement made by the street commissioner after the time of tbe accident. The objection was overruled, tbe defendant excepting. 'Whether or not tbe testimony was inadmissible because it was hearsay we need not inquire, for tbe defendant admits that tbe city, through its. mayor and aider-men and its chief of police, bad personal knowledge of tbe fact tbat tbe bridge bad been washed out on tbe evening of tbe day cn which it fell. Counsel for tbe defendant expressly state in their brief tbat tbe defendant “already bad notice.” If tbe testimony should bave been excluded, tbe error was without prejudice, for we can see tbat its admission was harmless.
5. Tbe defendant propounded to its street commissioner when called as a witness in its behalf, tbe following questions: “State what tbe rule of the city is in relation to whether or not tbe street work is done upon Sunday.” “State whether or not since you bave been street commissioner, it has been tbe rule to require any street work to- be done on Sunday.’’ Objections to these questions as attempts to- elicit immaterial testimony was sustained, tbe defendant excepting. Tbe action of
6. The ruling of the court in sustaining objections to questions put to a witness called by the defendant in surrebuttal, is urged as an error. It is also argued that the court erred in modifying’ certain instructions prayed for by the defendant, and in giving others. The attentive consideration we have given to the record satisfies us that there was no error preju dicial to the defendant in the rulings of the court, or in its action in modifying the instructions requested, or in its charge, —at least no error that could have been prejudicial to the rights of the defendant. The only instruction which we need notice is No. 17, which reads: “If the jury believe under these instructions and the testimony in this case that the plaintiff is entitled to recover damages from the defendant for any injuries which he has proven that he has sustained by reason of the facts set out in his complaint, then the jury have a, right to find for him such an amount of damages, not to exceed $5,000, as the jury believe from the evidence will compensate him for the personal injuries so received, and in doing so the jury have a right to consider the personal injuries received by him, if any has been proven, the probable consequences of such injuries, so far as proven, any pain or suffering he may have endured
We do not deem it necessary to notice the other specifications of alleged error. No one of them is well urged.
The judgment and the order refusing a new trial are affirmed. Let remittitur issue forthwith.
Affirmed.