Conway v. Monidah Trust Co.

• Decision Date: 15 April 1913
• Parties: CONWAY v. MONIDAH TRUST CO. ET AL.
• Court: Montana Supreme Court

47 Mont. 269

CONWAY
v.
MONIDAH TRUST CO. ET AL.

Supreme Court of Montana.

April 15, 1913.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by Joseph F. Conway, Jr., a minor, by Joseph F. Conway, Sr., his guardian ad litem, against the Monidah Trust Company and others. Judgment for plaintiff. Defendants appeal. Reversed and remanded for new trial.

James E. Murray, of Butte, for appellants.

Breen & Jones, of Butte, for respondent.

SANNER, J.

So far as germane to the questions involved in this appeal, the substantial allegations of the complaint are: That the defendant, a corporation, is the owner of the Tzarena lode mining claim, situate partly within and partly without the corporate limits of the city of Butte; that on July 19, 1911, there was, and for more than a year prior thereto had been, a certain shaft, about 45 feet deep, on this property, which the defendant had negligently permitted to remain “open, exposed and unprotected, without a substantial cover, or any cover whatever being placed over the same, or without a tight fence, or any fence whatever, being placed around the same”; that said shaft “was approximately 8 feet long and 4 feet wide from the bottom thereof to within about 5 feet of the natural surface of the ground adjacent thereto, at which point the sides of the main shaft spread outwardly until the same reached the natural surface, forming a saucer or bowllike depression,” and around the edges of this depression, and for some distance on all sides thereof, there were wild flowers blooming; that near the Tzarena lode there were also odd and curious formations of rock which, with the flowers, formed an attraction for children; “that on the said 19th day of July, 1911, the plaintiff herein, a child of the age of seven years, who did not know of the existence of said shaft, at dusk of said day was plucking wild flowers near the mouth of said shaft, and while so doing observed a cluster of wild flowers some distance from him, which he started on a run to obtain, and while so doing and using due care and prudence, and without contributing fault and carelessness on his part, ran into the mouth of said shaft aforesaid, and was precipitated to the bottom thereof,” sustaining the injuries for which recovery in this action is sought.

1. This complaint is attacked as insufficient because it alleges an affirmative act of the plaintiff, to wit, that he ran into the mouth of the shaft, as a proximate cause of his injury, and does not contain sufficient allegations to negative contributory negligence. The general rule as settled in this state by the uniform course of decision is that where the complaint shows that a proximate cause of plaintiff's injury was the act of the plaintiff himself, it will be held insufficient unless it goes further and by appropriate allegations shows that the plaintiff was, at the time, exercising ordinary care and circumspection. Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21;Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905;Hunter v. Montana C. Ry. Co., 22 Mont. 534, 57 Pac. 140;Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 68 Pac. 852;Ball v. Gussenhoven, 29 Mont. 328, 74 Pac. 871;Nord v. Boston & Mont., etc., Co., 30 Mont. 48, 75 Pac. 681;Birsch v. Citizens' El. Co., 36 Mont. 574, 93 Pac. 940;Poor v. Madison R. P. Co., 38 Mont. 361, 99 Pac. 947;Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063;Badovinac v. Northern Pac. Ry. Co., 39 Mont. 454, 104 Pac. 543. Of course this rule has reference only to acts of which negligence must be predicated in the absence of a countervailing explanation.

At what age a child becomes sui juris, so that negligence may be predicated of his acts, is a matter upon which authorities differ. By some it is held that a child of seven years of age is conclusively presumed incapable of contributory negligence. Watson v. Southern Ry., 66 S. C. 47, 44 S. E. 375;Taylor v. Delaware & Hudson Ry., 113 Pa. 176, 8 Atl. 43, 57 Am. Rep. 446;Chicago, etc., Ry. Co. v. Welsh, 118 Ill. 572, 9 N. E. 197;Indianapolis, etc., Ry. v. Pitzer, 109 Ind. 194, 6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387. However that may be, the rule in this state is that contributory negligence is not to be inferred as a matter of law, even in the case of a much older child. Mason v. Northern Pac. Ry. Co., 45 Mont. 476, 124 Pac. 271. This being true, it follows that the rule invoked by appellant can have no application to the complaint at bar. But apart from this consideration, we think the averments of the age of the plaintiff; the fact that it was dusk; his ignorance of the existence of the shaft; the natural engrossment in his childish pursuit; and the general allegation that he was “using due care, and prudence and without contributing fault and carelessness on his part”--are, as a matter of pleading, sufficient to negative contributory negligence and to avoid the rule. Birsch v. Citizens' El. Co., supra; Poor v. Madison R. P. Co., supra; Evansville & T. H. Ry. v. Crist, 116 Ind. 446, 19 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865; 1 Thompson on Negligence, §§ 375, 377, 378.

2. Under the allegations of the complaint, the respondent was technically a mere trespasser upon the property of the appellant. Egan v. Montana C. Ry. Co., 24 Mont. 569, 63 Pac. 831;Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373. It is the undoubted rule at common law that the owner of real property owes no duty to trespassers, other than to refrain from intentional injury. Hence no right of action would arise, in the absence of statute, in favor of a trespasser who might suffer injury under the circumstances here pleaded (Driscoll v. Clark, supra); but every owner holds his property subject to reasonable control and regulation of the mode of keeping and use as the Legislature, under the police power vested in the state, may think necessary for the prevention of injury to the rights of others and the security of the public health and welfare. Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450.

The question, then, is whether or not a trespasser upon private property may recover damages for injury suffered by him while so trespassing...