Snook v. City of Anaconda , 26 Mont. 128 ( 1901 )

ME. JUSTICE PIGOTT'

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 bicycle thereon, he accidentally, without any fault or negligence on his part, ran into the cut, was thrown violently off of his bicycle, and was precipitated upon the ground and into the cut, whereby he received great bodily injury.

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 a municipal corporation proper, as distinguisbed from quasi corporations, sucb as counties and New England towns, for failure to keep in repair its streets, was no longer- an open question in this state; nor do. we think that it is. In Sullivan v. City of Helena, 10 Montana Reports, 134 (25 Pac. 94), such liability was declared, the court saying: “We have already intimated that we do not intend to enter upon the difficult task of pursuing an independent investigation, and ascertaining the true principle of law, and determining the effect of statute» upon decisions. Our opinion is controlled by an important consideration of another nature. At the December term, 1862, and prior to the organization of the Territory of Montana, the Supreme Court of the United States, in Nebraska City v. Campbell, 2 Black, 590, 17 L. Ed. 271, heard a case which arose in the Territory of Nebraska. Mr. Justice Nelson, in the opinion, said: 'The law is well settled in respect to public municipal corporations, upon which the duty is imposed to construct and repair, or to keep in repair, streets or bridges, and upon which is also conferred the means of accomplishing such duty, that they are liable for any special damage arising out of neglect in keeping the same in proper condition. The principle was fully considered at the last term in the case of Weightman v. Washington Corp., 1 Black, 39, 51-53, 17 L. Ed. 52, where all the authorities will be found collected and examined.’ ’’ After referring to Barnes v. District of Columbia, 91 United States 540 (23 L. Ed. 440) ; District of Columbia v. Woodbury, 136 United States 450 (10 Sup. Ct. 990, 34 L. Ed. 472) ; Brown v. District of Columbia, 127 United States 579 (8 Sup. Ct. 1314, 32 L. Ed. 262), and District of Columbia v. McElligott, 117 United States 621 (6 Sup. Ct. 884, 29 L. Ed. 946), the opinion proceeds: “The city of Helena was incorporated by an act of the legislative assembly of the Territory of Montana, which was approved February 22, 1881. The respondent was injured August 29, 1888, and filed December 22, 1888, his complaint in this action. During these times the decisions of Nebraska City v. Campbell, supra, and Barnes v. District of Columbia, supra, were binding upon tbe courts of tbe Territory. Witb full knowledge of tbe legal consequences of tbe proceedings^ it was duly ordained tbat 'said city of Helena hereby assumes for itself tbe care and responsibility of streets, avenues, and alleys.’ Tbe liability, wbicb bad been accurately defined, bas not been restricted by tbe legislative depmrtment, and we can presume tbat tbe rule stated by tbe Supreme Court of tbe United States was satisfactory. We tbink it is our duty under these conditions to adhere to the doctrine wbicb bas been recognized upward of twenty-five years within .the confines of Montana,, and seems to be upheld by tbe weight of modern authority;” tbe opinion closing witb a quotation from Mr. Dillon’s treatise on Municipal Corporations, approving tbe doctrine-as just and supported by tbe overwhelming weight of. authority. In tbe subsequent case of Sweeney v. City of Butte, 15 Montana Reports, 274 (39 Pac. 286), tbe contention tbat such a municipal corporation was not liable was abandoned upon argument, tbe court citing tbe Sullivan Case. In Nelson v. City of Helena, 16 Montana Reports, 21 (39 Pac. 905), and in Leonard v. City of Butte, 25 Montana Reports, 410, 65 Pacific Reporter, 425, tbe doctrine of tbe Sullivan Case was impliedly, but none tbe less necessarily, recognized and followed. Albrittin v. Mayor and Aldermen of Huntsville, 60 Alabama Reports, 486 (31 Am. Rep. 46); Noble v. City of Richmond, 31 Grattan (Va.), 271 (31 Am. Rep. 726) ; Clark v. City of Richmond, 83 Virginia Reports, 355 (5 S. E. 369, 5 Am. St. Rep. 281) ; Conrad v. Trustees of the Village of Ithaca, 16 New York Reports, 158; Hines v. City of Lochport, 50 New York Reports, 236; Nelson v. Village of Canisteo, 100 New York Reports, 89 (2 N. E. 473) ; Pettengill v. City of Yonkers, 116 New York Reports, 558 (22 N. E. 1095, 15 Am. St. Rep. 442); City of Denver v. Dunsmore, 7 Colorado Reports, 328 (3 Pac. 705); Grove v. City of Fort Wayne, 45 Indiana Reports, 429 (15 Am. Rep. 262) ; Hutson v. Mayor, etc. of New York, 9 New York Reports, 163 (59 Am. Dec. 526) ; Cline v. Crescent City Rail-mad Company and City of New Orleans, 43 Louisiana Annual Reports, 327 (9 South. 122, 26 Am. St. Rep. 187) ; Sutton v. City of Snohomish, 11 Washington Reports, 24 (39 Pac. 273, 48 Am. St. Rep. 847); Cleveland v. King, 132 United States Reports, 295 (10 Sup. Ct. 90), are among the great number of cases announcing the same rule. Por a collection of the cases upon this question we refer to Elliott on Roads and Streets, 2d Edition, Sections 611-614, pages 642-649; to Dillon on Municipal Corporations, 4th Edition, Sections 1017-1024, pages 1279-1296; to Tiedeman on Municipal Corporations, Section 339, page 680; to Morrill on City Negligence, Chapter VII, page 72; to Jones on Negligence of Municipal Corporations, Chapter VIII, page 113; and to Williams on Municipal Liability for Tort, Section 70, page 108. We have, however, examined the question in the light of the authorities and of reason; and we believe the decision in the Sullivan Case to be correct. Since 1890 that case has been accepted and followed as the settled law in Montana; the legislative assembly has not seen fit to change the rule there announced. If the people wish to exempt cities and towns from liability for neglect to repair streets, they may do so through that department of the government which makes the statute law, — courts may only interpret the law. So far, therefore, as the first objection to the complaint is concerned, the overruling of the demurrer was proper.

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 of ■ defense. (Nelson v. City of Helena, supra; Prosser v. Montana Central Ry. Co., 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 814.) Tbe complaint is not obnoxious to tbe objection specifically urged.

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 the court was correct. The questions themselves did not indicate what the answers would be, and there was no offer to show what the defendant expected to prove by the witness. Again, if the answers had been that there was a rule not to require street work to be done on Sunday, it could not have been relevant or material. The existence of such a rule could not operate so as to release the city from its legal duty to repair the street or give warning of the danger to' travelers. Toward the plaintiff the city was under the same obligation to exercise diligence on Sunday as on any other day. The suggestion that the defendant was under no obligation to use ordinary care because Sunday happened to be the day after the defect in the street was caused, is Avholly without merit. The duty of the city was the same as the duty of an individual person would have been under the same circumstances.

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 in consequence thereof, if proven, to consider bis loss of time in endeavoring to be cured, bis expenses incurred in respect thereto, in so far as the same have been proven, and any permanent injury the plaintiff may have sustained and has been proven in this case.” It is urged that the instruction is erroneous, in that it permitted the jury to take into consideration as an item of damages the probable consequences so far as proved of the personal injuries received by the plaintiff, if any were proved. In the respect adverted to, the instruction is correct, and falls within the cases of Hamilton v. Great Falls Street Railway Company, 17 Montana Reports, 334 (42 Pac. 860, 43 Pac. 713) ; Kendall v. The City of Albia, 73 Iowa Reports, 243 (34 N. W. 833) ; Swift & Co. v. Raleigh, 54 Illinois Appeal Reports, 44; and St. Louis, I. M. & S. R. R. Co. v. Cantrell, 37 Arkansas Reports, 519 (40 Am. Rep. 105).

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.

The Chief Justice, having tried the cause as judge of the court below, takes no part in the foregoing opinion.