Childers v. Deschamps
| Decision Date | 12 June 1930 |
| Docket Number | 6611. |
| Citation | 290 P. 261,87 Mont. 505 |
| Parties | CHILDERS v. DESCHAMPS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; Asa L. Duncan, Judge.
Action by Alta V. Childers against Ulrich V. Deschamps and others. Judgment for defendants, and plaintiff appeals.
Reversed and remanded.
Harry H. Parsons, of Missoula, for appellant.
Murphy & Whitlock, of Missoula, for respondents.
The plaintiff, Alta V. Childers, has appealed from a judgment entered against her on an instructed verdict in favor of the defendants Ulrich W. Deschamps, Arthur Deschamps, and the Deschamps Implement Company, a corporation.
Plaintiff brought action to recover damages for injuries sustained when, on December 22, 1927, she fell on an icy sidewalk at the corner of Main and Stevens streets in the city of Missoula, which corner is occupied by a business block owned by the individual defendants and rented by the defendant corporation. The complaint alleges that at the time of the accident there existed an ordinance of the city of Missoula requiring property owners and tenants to keep the sidewalks in front of and adjoining their premises "clean and safe for pedestrians," and to remove all snow and ice "with dispatch," and all "night's accumulations" thereof before nine o'clock of the following morning, and, when a sidewalk has become dangerously slippery, such owners and tenants are required "forthwith" to sprinkle sand or ashes thereon. Failure to comply with the requirements of the ordinance renders the owner or tenant subject to fine.
It is then alleged that at the southwest corner of defendants' building (the street corner) defendants maintained a metallic pipe or aqueduct which carries water, etc., from the top of the building to the sidewalk, and that for more than a year prior to the accident this pipe was "out of order, leaky and defective," and as a consequence water escaped therefrom above the level of the sidewalk and ran onto and across the sidewalk, and at the time of the accident and for more than twenty days prior thereto, as a result of this condition, there had existed "an icy comb, strip or elevation" varying from one to five inches in height from the corner of the building across the sidewalk and toward the street a distance of more than six feet. This corner is alleged to be in a densely populated business district of the city.
The complaint alleges that the defendants "in violation of said city ordinance" negligently and carelessly failed to repair the pipe to prevent the discharge of water and the forming of ice and maintained it in a leaky condition "that they likewise, during said period, negligently and carelessly permitted ice to accumulate upon the sidewalk" and there to remain for a period of several weeks prior to the date of the accident.
As to the accident it is alleged that on December 22, 1927, at about 10:30 p. m. plaintiff while turning the corner mentioned and while exercising due care, "stepped upon and against the said obstruction of ice" and "by reason of the negligence of the defendants aforesaid" was violently thrown to the sidewalk and "as a direct and proximate result of said negligence and said fall" sustained serious injuries, which are fully described in the complaint.
It is alleged that the condition and facts alleged were known to the defendants for more than three weeks prior to the accident, "or by the exercise of due care, caution or inquiry, upon their part or the part of either of them, would have and should have been known to them."
To the complaint the defendants interposed a general demurrer, which was overruled, and thereafter answered denying negligence and the existence of a dangerous condition of the sidewalk; they alleged affirmatively that the sidewalk was cleared of snow and ice on December 22, 1927, and that, if there was any snow or ice there at the time of the accident, it was an accumulation from natural causes after the walk had been cleaned and that, if plaintiff sustained injuries at the time mentioned, they resulted from her contributory negligence in failing to exercise ordinary care in observing and proceeding along the sidewalk. The answer admits that defendants maintained pipes as alleged, for the purpose of conducting water from the top of the building to the city sewers, but denies that the pipes, or any of them, were leaky or defective, or that ice formed on the sidewalk by reason of water escaping from the pipe in question.
The cause was tried to a jury, and, at the close of plaintiff's case, defendants moved for a nonsuit, which motion was denied and they then introduced testimony to combat that of the plaintiff. Both sides having rested, defendants moved the court to direct a verdict in their favor, which motion was sustained, and on the directed verdict judgment for defendants was duly entered. Plaintiff moved for a new trial on the grounds that the court abused its discretion, errors in law occurring at the trial, insufficiency of the evidence to justify the verdict, and that the verdict is against law. The motion for new trial was denied. The questions raised by the specifications of error are:
(1) Does the violation of the city ordinance pleaded give rise to a cause of action by a person injured by reason thereof?
(2) Does the evidence show negligence on the part of the defendants, or any of them, which, under the allegations of the complaint, was the proximate cause of plaintiff's injury and for which defendants might be compelled to respond in damages?
(3) If a cause of action existed, was the evidence in support thereof sufficient to compel submission to the jury?
(4) Does the evidence show contributory negligence barring recovery?
Primarily, the duty is imposed upon a city to keep its sidewalks in reasonably safe condition for the protection of the traveling public, which, of course, includes keeping them free from snow and ice, but the performance of this duty may be delegated to the owners of adjoining premises (section 5039, subd. 7, Rev. Codes 1921, chapter 20, Laws 1927) by ordinance enacted under the police power of the city. City of Helena v. Kent, 32 Mont. 279, 80 P. 258, 4 Ann. Cas. 235. Such an ordinance is not intended, however, for the protection of the individual by the property owner, but in aid of the city in discharging its duty to the public and the individual; it but makes the property owner a joint agent with the street commissioner and other employees of the city in performing the duty of the city. As the fee to the sidewalks of a city is in the city, at common law, and generally, in the absence of a statute to the contrary, the abutting owner owes no duty to the traveling public to keep the sidewalk in front of his premises free from snow and ice.
It is frequently declared that the violation of a statutory duty constitutes negligence per se, and, in a proper case, the rule would be the same as to the violation of an ordinance; but the rule applies only when the duty is primarily that of the person sought to be held.
As a property owner, in removing the natural accumulation of ice and snow, acts only as the agent of the city in the performance of its primary duty, an action predicated upon failure to comply with the requirements of the ordinance will not lie against the property owner. Hanley v. Fireproof Building Co., 107 Neb. 544, 186 N.W. 534, 24 A. L. R. 382, and cases discussed in note. See, also, Sewell v. Fox, 98 N. J. Law, 819, 121 A. 669, 28 A. L. R. 1357; Russell v. Realty Co., 293 Mo. 428, 240 S.W. 147; Brotzman v. Lindenfeld, 133 Misc. 832, 234 N.Y.S. 79; Smith v. Investment Co., 87 Or. 683, 171 P. 555; McQuillin on Mun. Corporations (2d Ed.) § 902. However, the familiar doctrine that, while the owner of land is not responsible for the natural flow of surface water across his land onto another's, he is liable if he so collects such water by artificial means and discharges it in bulk at a given point upon his neighbor's land, has application here, and, under this doctrine and that of responsibility for the creation of a nuisance, it is generally held that where a property owner collects the water from his roof and by means of a pipe, spout, or trough, conveys it to, and discharges it upon, a public way where, through the operation of natural causes, ice forms constituting a menace to passers-by, his act is the efficient cause in the creation of a nuisance, and he may be held liable for whatever damage results as a probable consequence. This liability does not arise from the fact that he is the owner of property abutting on the sidewalk, but from the fact that he is instrumental in causing the condition either by his willful act or negligent omission to perform a duty which the law imposes upon him, and does not impair the doctrine laid down in the cases above cited. Tremblay v. Harmony Mills, 171 N.Y. 598, 64 N.E. 501; Field v. Gowdy, 199 Mass. 568, 85 N.E. 884, 19 L. R. A. (N. S.) 236; Stephens' Adm'r v. Deickman, 158 Ky. 337, 164 S.W. 931, 51 L. R. A. (N. S.) 309; Reedy v. St. Louis Brewing Ass'n, 161 Mo. 523, 61 S.W. 859, 53 L. R. A. 805; Korricks Dry Goods Co. v. Kendall (Ariz. 1928) 264 P. 692, 58 A. L. R. 145; Benard v. Woonsocket Bobbin Co., 23 R.I. 581, 51 A. 209.
Predicating her cause of action upon the failure of the defendants to obey the mandate of the ordinance alone, the complaint would not state facts sufficient to constitute a cause of action nor would plaintiff's proof entitle her to a recovery, and, on that theory alone, the court should, and probably would, have sustained the demurrer to the complaint or the motion for nonsuit. However, paragraph IV of the complaint, without mention of the ordinance, describes the drain pipe erected...
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