Douris v. City of Butte , 64 Mont. 211 ( 1922 )

MR. JUSTICE COOPER

delivered the opinion of the court.

This is an action to recover damages for personal injuries suffered by reason of a fall upon a sidewalk of a street in the city of Butte at a point where snow and ice had formed causing a slippery and slanting surface. Plaintiff had judgment, and defendant appeals from it and an order denying its motion for new trial.

The sufficiency of the complaint was questioned both by general demurrer and by objection to the introduction of any evidence, at the beginning of the trial.

The principal ground upon which the defendant seeks a reversal of the judgment is that by neither the allegations nor the proof does the record make it appear that the defendant had notice, either actual or constructive, of the existence of the ice and snow in front of the vacant lot in question for a time long enough to enable it to learn of the condition of the walk and to remove the danger after notice had been imparted to it.

The plaintiff was permitted to amend her complaint. Of this the defendant does not complain in this court. After the amendment it charged, in substance, that at the date of the accident, and for a long time prior thereto, namely, more than five days, the defendant had the care, regulation, supervision, and control of the particular street and sidewalk in question, and had knowledge of its unsafe condition, or by the exercise of reasonable care upon its part, or that of its officers in authority, could have ascertained its condition and the danger incident thereto, and that at all the times mentioned it did have full knowledge thereof. Tested by the rules laid down by this court in a case in which similar facts were pleaded as in the complaint in the present case, the averments were sufficient in all respects. (Murray v. City of Butte, 51 Mont. 258, 151 Pac. 1051.)

There was evidence given by witnesses for both plaintiff and defendant tending to show that the plaintiff was in the exercise of due care when she fell and sustained the injuries complained of; that the condition of the place on the sidewalk where the accident happened was very bad on account of the ice and snow which had been permitted to accumulate and remain there; that it formed a slippery and slanting surface extending out to the edge of the sidewalk toward the street where she fell and was injured; that it had existed for a period much longer than five days; that defendant had both actual and constructive notice thereof; that it was a portion of the city patrolled by policemen in the employ of the defendant, and sufficient to show that in the proper exercise of its municipal functions the city ought to have known of it, and that it failed to remove the danger arising from such accumulation. Of evidence enough like that shown in the present case to make that case decisive of the principal issues now to be determined, Mr. Justice Holloway uses this language: £ £ The evidence tends to show due care on the part of plaintiff, and we think is amply sufficient to make out a case for the jury, upon the theory that, if the ice is permitted to accumulate upon the walk and to form a smooth, slippery surface at an angle or slanting to the plane surface of the walk, so that it becomes difficult and dangerous for pedestrians to pass over it while exercising ordinary care, then the city is liable for injuries caused by such obstruction to travel, provided it had actual knowledge of the condition, or by reason of lapse of time ought to have had knowledge of it, and fails, after such knowledge, to remove the obstruction within a reasonable time.” (Townsend v. City of Butte, 41 Mont. 410, 109 Pac. 969.)

The third assignment of error, and the only other question of sufficient moment to require consideration, arose upon a motion to strike out the statement of a witness who told of a fall she had experienced in front of the vacant lot in question, because it was not “the same place or the same site in which the injuries were received by this plaintiff.” The trial court’s remark that the witness had testified that “the snow and ice was in front of the whole lot” is supported by the record, and shows clearly that the court committed no error.

There being no error in the record, the judgment and order are affirmed.

Affirmed.

Associate Justices Farr, Holloway and Galen and Honorable Roy E. Ayers, District Judge, sitting in place of Mr. Chief Justice Brantly, disqualified, concur.