111 P. 715 | Mont. | 1910
delivered the opinion of the court.
A demurrer to the complaint was sustained, and plaintiff, declining to plead further, suffered judgment to be rendered and entered against her, and has appealed t-o this court.
The action is for damages for personal injuries alleged to have-been sustained by the plaintiff as the result of a fall upon a sidewalk in the city of Helena. It is alleged in the complaint, that, immediately prior to the time of the injury (January 15, 1909), snow and ice had accumulated on the sidewalk in question, and by reason of persons traveling over it, the surface had become rough, ridged, uneven, and dangerous, and because of
Section 3289 of the Revised: Codes reads as follows: “Before any city or town in this state shall be liable for damages for or on account of any injury or loss alleged to have been received or suffered by reason of any defect in any * * sidewalk * «= * in Said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council or trustee, or other governing body of such town or city, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred.” (Italics ours.)
1. It is very earnestly contended by counsel for appellant that by the use of the phrase “defect in any sidewalk” the legislature must have meant to refer only to some structural deficiency of a sidewalk, and did not mean to include an obstruction-on, or a defect in, the condition of the walk, and, as plaintiff’s injuries resulted from an obstruction on the walk, her ease does not fall within the class mentioned in the statute above, and notice to the city was not a condition precedent to her right to recover. In support of the contention that an accumulation of snow and ice on a sidewalk cannot be understood to constitute a defect in the walk, counsel for appellant cites McKellar v. Detroit, 57 Mich. 158, 58 Am. Rep. 357, 23 N. W. 621. The plaintiff in that action was injured by slipping on a cross-walk in the city of Detroit. The statute under consideration was entitled “An Act for the Collection of Damages Sustained by Reason of Defective Public Highways, Streets, Bridges, Crosswalks and Culverts.” The body of the Act gave a right of action for injuries sustained through the negligence of any township, village, or city in failing to keep its highways, streets, bridges, crosswalks, or culverts in good repair and in a condition reasonably safe and fit for travel. The court held, in effect, that the statute did not make any distinction whatever between a
Another ease upon which great reliance is placed by counsel for appellant is Kansas City M. & M. R. R. Co. v. Burton, 97 Ala. 240, 12 South. 88. In that case there was under consideration the employer’s liability law of Alabama, which the court says was “copied from the English employer’s liability Act (Stats. 43 & 44 Viet.),” which provides for recovery of damages for injuries occasioned “by reason of any defect in the condition of the ways, walks, machinery or plant connected with or used in the business of the employer.” The Alabama court reviews the decisions of the English courts construing the Act, and, following the English interpretation of the statute, reached the conclusion that a car set upon a sidetrack does not constitute a defect in the main track, even though the car was set so close to the main track that a brakeman in the discharge of his duties was injured thereby.
Neither the Michigan case nor the case from Alabama can be said to determine the question before us. But, if it could be said that the courts of those states uphold appellant’s contention, they are opposed to the overwhelming weight of authority.
In Williams on Municipal Liability for Torts, page 163, it is said: “It is also held with equal unanimity of opinion that if the snow or ice, instead of presenting a smooth surface, has accumulated in ridges, or has assumed a rough and uneven condition or such a shape as to be in some sense a real obstruction to travel, either by reason of drifting or of the repeated flowing and freezing of water, or of the passing to and fro of travelers, or from any other cause, it is a defect in the highway.” And numerous cases are cited in support of the test.
We cannot assume that, in enacting section 3289 above, the members of the legislature proceeded with open dictionaries before them, or intended that .every word employed should be given its narrowest technical meaning. We think that, when they used the phrase, “any defect in any sidewalk,” they meant to include any and every defect, deficiency, or obstruction which would interfere with the proper use of the walk.
2. The purpose of the Act is to require that notice of any injury arising from a defective sidewalk, street, etc., shall be given to the city, not alone that the city may have an opportunity to examine the place where the injury occurred, and consult those who may be witnesses, but as well to enable the city to settle the claim and avoid the expense of litigation if investigation discloses a legal liability on its part. For this reason it is not sufficient that the city officers had notice of the defect. It is knowledge of the injury which the statute requires shall be brought to the attention of the city authorities.
3. It is argued that section '3289 is unconstitutional in that an unjust discrimination is made in favor of municipalities and against all others who may be defendants in personal - injury actions; or, in other words, that, in case the notice provided for above is not given, the city is then granted a special immunity. A statute is not open to objection merely because it is class legislation. If the classification is reasonable, and all members of a given class receive equal protection, the statute will be upheld. This is the universal rule. (1 Lewis’ Sutherland on Statutory Construction, see. 203; 26 Am. & Eng. Ency. of Law, 2d ed., 682; 8 Current Law, 1980; Village of Bloomer v. Town of Bloomer, 128 Wis. 297, 107 N. W. 974.)
Because of the failure of this plaintiff to notify the city officers, or to have them notified, of her injuries, she lost whatever right she had to prosecute her action against the city. The allegations of her complaint show affirmatively that she does not have a cause of action.
The demurrer was properly sustained, and the judgment of the district court is affirmed.
Affirmed.
