Cassady v. City of Billings, 9800

Decision Date18 June 1959
Docket NumberNo. 9800,9800
Citation135 Mont. 390,340 P.2d 509
PartiesAda CASSADY, Plaintiff and Appellant, v. CITY OF BILLINGS, a Municipal Corporation, Defendant and Respondent.
CourtMontana Supreme Court

Joseph P. Hennessey, Billings, for appellant.

Coleman, Lamey & Crowley, James F. Battin, Billings, for respondent. Cale J. Crowley, Billings, argued orally.

CASTLES, Justice.

This is an appeal from a judgment of nonsuit. The matter was submitted to the trial court on an agreed statement of facts which consisted of the appellant's testimony, and it was stipulated that the appellant would corroborate the testimony with other evidence. The stipulations then provided for submission to the court of the respondent's motion for nonsuit, and if the motion was granted that judgment would be entered with the same force and effect as if the case had been actually tried.

The facts are these: The appellant was 36 years old, married and had three children. She lived in Billings since 1945 and had used the City of Billings Municipal Park ice skating rink, maintained, conducted and operated by the respondent City without charge for skating, since 1945 each skating season until 1956. On January 8, 1956, appellant, accompanied by her family, went to the rink between 11:30 a. m. and noon on a bright clear day. She had her skates on when she arrived. They were figure skates with the front end of the blade curled up and notched like saw teeth. She entered the rink at one corner.

Before she started to skate, she observed the ice and it appeared rough. As soon as she started to skate, she knew the ice was rough, and it had pits in it, consisting of small depressions with a little ridge around the edge. As she and her husband skated over the ice, they noticed the roughness and pits, and skated to the far end to see if the entire rink was rough; it was, so as she testified when they found the entire surface rough they figured they might as well skate all over it. They went around the rink about three times, and in between five and ten minutes after starting, and while she and her husband had their four year old child suspended between them, she fell suffering the injuries complained of.

There were no holes in the ice, it was simply a situation where the entire surface of the ice had frozen in the pitted manner; a condition the appellant observed and tested. The appellant was not exactly sure what caused her fall but thinks that her skate must have hit one of the pits. She did not know whether the saw teeth on the front of her skate caught in the ice or not; it simply stopped. At the time she had the weight of her four year old child suspended between herself and her husband, in addition to her own weight.

All of these facts are the appellant's own story. The district court granted the motion for nonsuit, relating in a memorandum that the appellant, as a matter of law under such circumstances, assumed the risk of falling on the ice, and was guilty of contributory negligence.

As to the latter charge, we recognize that there is a distinction between the two defenses and in a given case the distinction might be important. But, in the instant case it appears to us that both defenses are apparent as a matter of law. Skating on observed and tested rough ice with sawteeth edge skates certainly is a risk, and then attempting to carry, suspended between two skaters, a four year old child would be contributory negligence under the circumstances. We can see no reason to attempt to distinguish on the record before us, between the two defenses.

Further, whether the assumption of risk doctrine extends to cases other than master-servant situations need not be considered, because, if the judgment must be sustained under either version, the evidence being viewed from a standpoint most favorable to plaintiff with every fact deemed proven which the evidence tends to prove, we must affirm the judgment. This court has in the past held that the defense of assumption of risk extends to relationships independent of the master-servant relationship. Lake v. Emigh, 118 Mont. 325, 331, 167 P.2d 575; Id., 121 Mont. 87, 190 P.2d 550; Osterholm v. Boston & Montana Consol. Copper & Silver Mining Co., 40 Mont. 508, 524, 107 P. 499.

The respondent concedes that the operation of the ice rink is a proprietary function. Whether (and see Felton...

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29 cases
  • Deeds v. United States
    • United States
    • U.S. District Court — District of Montana
    • November 10, 1969 Montana the defense has been extended to "relationships independent of the master-servant relationship". Cassaday v. City of Billings, 1959, 135 Mont. 390, 392, 340 P.2d 509, 510 and cases there cited. Assumption of risk is governed by the subjective standard of the plaintiff rather than......
  • Pfost v. State
    • United States
    • Montana Supreme Court
    • February 20, 1986
    ...should be delivered by the claimant to the District Court to apply the limitation required by § 40-4402. In Cassady v. City of Billings (1959), 135 Mont. 390, 340 P.2d 509, it was conceded that the operation of an ice skating rink by a city was a proprietary function, but this Court held ag......
  • Vogel v. Fetter Livestock Co.
    • United States
    • Montana Supreme Court
    • September 1, 1964
    ...all accidents and injuries to invitees. Taylor v. Chicago, Mil., St. P. & P. Ry. Co., 142 Mont. 365, 384 P.2d 759; Cassaday v. City of Billings, 135 Mont. 390, 340 P.2d 509. Under the circumstances there was clearly a hidden or lurking danger that defendant knew about. Defendant had knowled......
  • Hamman v. United States
    • United States
    • U.S. District Court — District of Montana
    • March 14, 1967
    ...Practice 2584-5, para. 56.17(42). 7 The rule in Montana with respect to an invitee was well summarized in Cassady v. City of Billings, Mont.1959, 135 Mont. 390, 340 P.2d 509, 510: "It is well-established in Montana that a landowner is obligated toward an invitee to either use ordinary care ......
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