No. 2,377 | Mont. | Apr 20, 1907
delivered the opinion of the court.
1. The first contention of appellant is that the complaint does not state a cause -of action; and we may readily agree with counsel that it is necessary for the complaint to show actionable negligence on the'part of the city, and to show the causal connection between the negligence alleged and the injury of which complaint is made. It is directly alleged that the city negligently permitted snow and ice to accumulate on the sidewalk at the point where the injury occurred, to the depth of several inches, and that this snow and ice, by reason of persons passing over it, and other causes, became so uneven and rounded, and had such an angle from the level of the sidewalk, that a person could not walk over it without danger of falling, and that this condition was known to the city for a long time prior to the date of plaintiff’s injury. It is in effect alleged, though not very specifically, that this accumulation of snow and ice, under the circumstances described, constituted an obstruction which the city negligently permitted to remain there without proper protection, and without any light or signal' to indicate danger. We are of the opinion that these allegations are sufficient. It is a general rule that a complaint will be upheld, if the essential facts appear by plain and necessary implication, particularly so when no special
It is further claimed that it does not appear from the complaint just what caused plaintiff’s injuries. It is alleged that while plaintiff was passing along this sidewalk and unaware of danger, she was tripped and thrown down, and slipped and fell on said ice and snow, whereby she sustained the injuries complained of. It is also a general rule of pleading that in an action for damages for negligence, it must appear from the complaint, either by direct averment or from the statement of such facts as to raise the presumption, that the injury was the natural and proximate result of defendant’s negligence. (14 Ency. of Pl. & Pr. 336, and eases cited.)
It appears to us that the meaning of this complaint is sufficiently clear, and that, at least by necessary implication, it appears that the obstruction on the sidewalk, consisting of accumulated snow and ice in the condition described in the complaint was the cause of plaintiff’s injury, and the objection to the introduction of evidence was properly overruled.
2. The next contention is that the evidence is not sufficient to sustain the verdict, and in this connection we may adopt appellant’s theory of the law as announced in 2 Dillon on Municipal Corporations, and by the decided cases, that a showing of mere slipperiness of the sidewalk, occasioned by snow and ice, is not sufficient to hold the city liable. (2 Dillon on Municipal Corporations, sec. 1006; Henkes v. Minneapolis, 42 Minn. 530" court="Minn." date_filed="1890-02-14" href="https://app.midpage.ai/document/henkes-v-city-of-minneapolis-7966383?utm_source=webapp" opinion_id="7966383">42 Minn. 530, 44 N. W. 1026; Taylor v. Yonkers, 105 N.Y. 202" court="NY" date_filed="1887-04-19" href="https://app.midpage.ai/document/taylor-v--city-of-yonkers-3604535?utm_source=webapp" opinion_id="3604535">105 N. Y. 202, 59 Am. Rep. 492, 11 N.E. 642" court="NY" date_filed="1887-04-19" href="https://app.midpage.ai/document/taylor-v--city-of-yonkers-3604535?utm_source=webapp" opinion_id="3604535">11 N. E. 642.) It is to be observed, however, that in stating the rule Dillon uses this language: ‘ ‘ The mere slipperiness of a sidewalk occasioned by ice or snow not being accumlated so as to constitute an obstruction is not ordinarily such a defect as will make the city liable for damages occasioned thereby.” And entirely in harmony with the rule first announced above is. the further doctrine that if the snow or ice is permitted to accumulate or to become rough and uneven, so that the slipperiness becomes more dangerous than if it lay in a smooth surface,
The evidence tends to show that at the point where the accident happened there was a drift or bank of snow on the sidewalk, varying in depth from eighteen inches on the inside of the walk to three or four inches on the outer side; that because of the grade of the street and the fact that the gutter along the sidewalk was permitted to become choked, water from melted snow and ice above ran down upon the sidewalk to this drift, and in the late afternoons or evenings, froze, thus adding to the already accumulated ice and snow; that during the day when the snow and ice were melting, pedestrians passing along this walk made deep footprints, and that when it became colder the surface was made very rough and uneven; that the travel had been around the deepest portion of the drift and toward the outer edge of the walk, and that, when injured, the plaintiff was traveling in this path. One witness testified that two days prior to the accident he fell on the same walk at the same place, and that the surface was so slanting that when he fell he slipped off into the gutter. Another witness testified that a few days before, she was walking on this sidewalk, and that when she reached this particular point she was compelled to get down and get off into the street, as she could not walk on the side
3. Complaint is made of the action of the court in modifying instruction No. 2 as requested by the defendant, and in giving the instruction as thus modified. But since all of the evidence given in the case refers only to the dangerous condition of the walk occasioned by the accumulation of the snow and ice, the jury could not have been misled, and no injury could have resulted from the use of the term “any,” as applied.to the defective condition of the walk, or obstruction on the walk.
4. We 'think instructions Nos. 8 and 9 contain -correct statements of the law applicable to the facts of this case. What is said in paragraph 2 above is sufficient to dispose of the objection made to these instructions.
5. Instruction No. 10 is taken substantially from the opinion in the case of Huston v. Council Bluffs, 101 Iowa, 33" court="Iowa" date_filed="1897-01-29" href="https://app.midpage.ai/document/huston-v-city-of-council-bluffs-7107629?utm_source=webapp" opinion_id="7107629">101 Iowa, 33, 69 N. W. 1130, 36 L. R. A. 211; and while it is not very definite in its terms, it is, in effect, the statement of a general rule, and we think may fairly be said to correctly state the law. (Broburg v. Des Moines, 63 Iowa, 523" court="Iowa" date_filed="1884-04-25" href="https://app.midpage.ai/document/broburg-v-city-of-des-moines-7100978?utm_source=webapp" opinion_id="7100978">63 Iowa, 523, 50 Am. Rep. 756, 19 N.W. 340" court="Iowa" date_filed="1884-04-25" href="https://app.midpage.ai/document/broburg-v-city-of-des-moines-7100978?utm_source=webapp" opinion_id="7100978">19 N. W. 340; Cook v. Milwaukee, 24 Wis. 270" court="Wis." date_filed="1869-06-15" href="https://app.midpage.ai/document/cook-v-city-of-milwaukee-6600205?utm_source=webapp" opinion_id="6600205">24 Wis. 270, 1 Am. Rep. 183.)
6. Complaint is made of instructions Nos. 11 and 13, given to the jury; but neither of them is set out in the specifications, as required by the rules of this court. However, we have examined them, and think they are not open to the criticism made.
7. Exception is taken to the refusal of the court to give certain instructions requested by the defendant. No useful purpose would be served in referring to each of these instructions at length. It is sufficient to say that we think the court fairly covered the law of the ease in the instructions given.
8. During the course of his argument to the jury, counsel for the defendant sought -to make use of the instructions which had been given, but the court refused to permit it, and error is predicated upon this action of the court. There is some conflict in the evidence presented by affidavits as to just what oc
9. We think appellant is correct in the criticism made of subdivision 5 of instruction No. 11. In this instruction the court was directing the attention of the jury particularly to the elements of damages for which the plaintiff might have recovery. The court announced that one of these elements is: “5. Such sum of money as will compensate the plaintiff for the amount expended by her in and about the treatment of said injuries, including medical attendance. * ® * ”
The only testimony touching the subject of the value of medical treatment was given by the plaintiff, who simply testified that she paid Dr. McCrimmon $50, and the testimony of Dr. McCrimmon himself, who testified that he charged $56, and that she paid it. Authorities may be found which hold that evidence showing the amount paid for such services, the extent of the injuries, the particular services required and the number of visits made by the physician, is sufficient to go to the jury under proper instructions, upon the theory that the facts shown by such evidence form a substantial basis from which the jury may determine whether or not the charge as made was in fact reasonable. But the rule of law in such a case is: “ The measure of the recovery under this head is not necessarily the amount paid for medical attendance. The reasonableness of the charges must be established. The reasonable charges intended are the
The error in subdivision 5 of instruction 11 above, is apparent. The court announces an incorrect rule. In fact, it practically directed the jury to find for the plaintiff in the sum paid for the medical services, without regard to the question of the reasonableness of the fee. This the court had no right to do. It was for the jury to determine from all the evidence whether the amount paid was in fact the reasonable value of the services rendered.
We have examined the other assignments made, but find no merit in any of them.
The cause will be remanded to the district court "with directions to grant the defendant a new trial, unless, within thirty days after the filing of the remittitur with the clerk of the district court, the respondent shall file with said clerk her consent in writing, that the judgment may be modified by deducting from the amount thereof, as of the date of its rendition, the sum of $56. If such consent be given, then the judgment shall be modified accordingly, and in that event the judgment, as modified, and the order denying defendant a new trial, will be affirmed.
New trial granted nisi.