65 P.2d 1175 | Mont. | 1937
Lead Opinion
This action was instituted to recover damages for injuries sustained by plaintiff as a result of falling upon a sidewalk in the City of Butte. The verdict was for the plaintiff. Judgment was in conformity with the verdict. A motion for new trial was made and denied. The appeal is from the judgment.
At the close of the testimony a motion was made for a directed verdict, which was denied. Error is assigned on this ruling. The evidence shows without dispute that at a place in the 300 Block on North Montana Street, where there had been a 6 1/2 per cent. grade, plaintiff fell and sustained injury. At the point where she fell a coal-hole is located in the sidewalk. She testified that she slipped, or tripped and slipped, on the band around the coal-hole cover, and that the sidewalk at the time was dry and without snow or ice. The coal-hole door had knobs on it, and the collar or band around it had circular corrugations or grooves. Other witnesses testified that the collar was smooth and slippery and had been in such condition for a number of years. A photograph of the coal-hole cover and of the surrounding sidewalk was received in evidence and has been certified to this court; it clearly reveals the existence of the circular corrugations or grooves on the collar or band around the door, as well as the knobs on the door itself. The band, at least on one side, was one-eighth of an inch above the level of the surrounding sidewalk. The jury viewed the premises. The record is barren of any evidence tending to show that any other accident had occurred at this point by pedestrians slipping on the band around the coal-hole door.
The defendant was duty bound, under the law, to exercise[1] ordinary care to keep its sidewalks in a reasonably safe condition for public travel. (Olson v. City of Butte,
*227
In the case of Beltz v. City of Yonkers,
The rule is stated in 7 McQuillin on Municipal Corporations, second edition, section 2974, as follows: "To keep all the sidewalks in perfect condition at all times is practically a municipal impossibility. For instance, slight inequalities are nearly always found, at one place or another, especially where there is much travel. Minor defects or obstructions are generally not actionable. Generally, in accordance with the principle sustained by a majority of the judicial decisions, early and late, these minor defects or obstructions include slight depressions in sidewalks, slight differences in the level of a sidewalk, * * * inequalities at junction of concrete blocks of which the walk was composed, and small holes." The application of this rule is illustrated by the following cases: Emery v. Cityof Pittsburgh,
Accordingly we hold that the raise of an eighth of an inch of[2] the collar around the coal-hole was such a slight defect that reasonably prudent men could not have anticipated that it was likely to cause an accident. *229
The witnesses testified that the band around the coal-hole door was smooth and slippery. Recovery has been awarded in a number of decisions where a coal-hole door, or sidewalk, was slippery; but in all of the cases which we have found which permitted recovery, the fact that the coal-hole covering in the sidewalk was slippery, or the sidewalk was slippery, was demonstrated by proving, as in our own case of Leonard v. Cityof Butte, supra, that other accidents had occurred previously to the one which was the basis of the suit. (Smith v. City ofTacoma,
Recovery was permitted as a result of a slippery condition of the sidewalk, without proof of other accidents, in the case ofCromarty v. Boston,
The witnesses testified that the band about the coal-hole was smooth and slippery, and one witness testified that the corrugations were worn down but that a person could see where they had been. The photograph received in evidence and certified to this court as an exhibit reveals that the circular corrugations were not worn down to the point of their elimination. The whole width of the casing around the coal-hole was *230 24 inches. The rim was about 4 inches wide. As stated, the corrugations on the rim were circular.
The primary question in this case is whether a defect existed in the sidewalk of sufficient magnitude to cause reasonable men to conclude that an accident was likely to occur as a result of such defect, and not whether the proper city officials had constructive notice of an alleged defect.
Witnesses on behalf of defendant city testified that the collar or band around the coal-hole door was not smooth and slippery. The testimony most favorable to the plaintiff is that this band or collar was smooth and slippery. At best, these words are relative terms. None of the witnesses for plaintiff further described this condition. As the testimony stands in the record, it is at best the conclusion of these particular witnesses.
Viewing the testimony in the light most favorable to the plaintiff, we are unable to say that reasonably prudent men could have reasonably anticipated that the condition existing was dangerous. Accordingly the evidence was insufficient to warrant a finding of negligence on the part of the defendant city. The court was in error in denying the motion for a directed verdict.
The judgment is reversed and the cause remanded to the district court of Silver Bow county with directions to enter a judgment of dismissal of plaintiff's complaint.
ASSOCIATE JUSTICES STEWART and MORRIS concur.
Dissenting Opinion
I am not able to subscribe to what is said in the foregoing opinion with reference to the smooth and slippery condition of the iron band around the coal-hole door and used as a portion of the sidewalk. That a smooth and slippery condition of a walk resulting from wear constitutes a defect has been definitely decided by this court. (Leonard v. City of Butte,
Here it should be noted that at the point where plaintiff stepped upon the iron band the corrugations were not running at right angles with her line of travel but were extended as nearly parallel thereto as possible on a circular band and on a grade of 6 1/2 per cent. Other cases holding that a smooth and slippery condition resulting from wear and causing a pedestrian to fall and sustain injuries, constitutes a defect are the following:Berry v. City of Sedalia,
The fact that there was no proof that others had slipped and fallen at the place in question, I think, is not important. That, of course, is one way of proving notice or knowledge of the defect, actual or constructive, on the part of the city, but it is not the only method of proving such notice or knowledge.
In O'Brien v. City of St. Paul, supra, the court, in speaking of similar accidents, said: "It is true that this is only a species of constructive notice, but evidence of constructive notice is competent." In other words, the plaintiff here had a right to prove constructive notice otherwise than by the mere fact that others had slipped and fallen at this particular place. She did prove constructive notice and knowledge by proving the length of time that the smooth and slippery condition had existed, and the question is this: Did it exist a sufficient time, and was it so obvious to ordinary inspection as to warrant the inference that the defendant had actual or constructive notice or knowledge of the existing defect in time to have repaired it?
In Tudor v. City of Louisville, supra, the court, in speaking of constructive notice, said: "In order to fasten upon the municipality liability for an omission to repair the unsafe condition of the street or sidewalk, it must have either actual or constructive notice of the defect, and such constructive notice is established when the evidence shows that the defective condition, although not actually known by the city, could have been known by the exercise of ordinary diligence and care on its part. If the defect or obstruction had existed for such a length of time as to have afforded to the authorities of the city a reasonable opportunity to have discovered it, it would be charged with constructive notice."
In the case of Lyon v. City of Logansport, supra, liability was predicated upon a defect consisting of a portion of a sidewalk *233 becoming worn to the extent that it became smooth and slippery. It is true that in that case others had sustained a similar accident to that of plaintiff. However, the court in discussing the law applicable to the case did not base its decision upon that fact, but said specifically that "where the street has become out of repair, the corporation is also entitled to notice of the defect, which may be either actual or constructive." The court pointed out that the condition had existed for more than ten months, and said: "It was the duty of appellee to use active diligence to discover defects in its streets, while the appellant was only bound to use ordinary care to avoid injury. He had the right, in the absence of knowledge to the contrary, to assume that the crossing was safe, and to act upon this assumption, while at the same time using proper care upon his part."
The applicable rule was stated by the supreme court of South Dakota in Schuler v. City of Mobridge, supra, as follows: "It is contended by defendant that there is no evidence that the city had notice of the defective condition of this sidewalk. It was not necessary to prove this fact in this case. The evidence shows that the sidewalk in question had been built some time during the summer or fall of the year previous to the accident. It also shows that the condition complained of by plaintiff had existed from the time the walk was built. And the evidence shows that this particular piece of sidewalk was located in the business portion of the town, and was used as much or more than any other piece of sidewalk in the town. These facts and circumstances are sufficient to impute knowledge of the condition of the sidewalk to the officers of defendant."
Finally, I think it is important to keep in mind the fact that the jury viewed the premises in this case. The importance of this is demonstrated and was pointed out by the court in the case ofCordish v. Bloom,
Under the evidence, I think the questions of defendant's negligence and plaintiff's contributory negligence were properly submitted to the jury, and that their findings, approved by the trial court, should not be disturbed by us. Moreover, if the evidence of plaintiff were lacking in the respects stated in the majority opinion, then the utmost that this court should do is to hold that the court erred in denying defendant's motion for nonsuit, or motion for new trial, and thus enable plaintiff *235 to again try the case, and, if she is able to do so, to produce the evidence of similar accidents.
Dissenting Opinion
I dissent. The only issue in this case is the question of fact as to whether the sidewalk was exceptionally slippery — clearly a question of fact. The Constitution (Art. III, sec. 23) clearly and undisputedly imposes upon the jury the right and duty of determining the facts. The jury viewed the premises, saw and heard the witnesses face to face. Their verdict is final on the facts. In addition, the judge who saw and heard the witnesses concurred in the verdict. The court here usurps the right and duty of the jury and finds the facts in direct contravention of the provision of the Constitution. If the Constitution is not fair or practical, let the people change it in the lawful way. Courts have no right to change it by a forced construction.