Conway v. Monidah Trust Co.
| Decision Date | 15 April 1913 |
| Citation | 132 P. 26,47 Mont. 269 |
| Parties | CONWAY v. MONIDAH TRUST CO. ET AL. |
| Court | Montana Supreme Court |
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.
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 P. 21; Nelson v. City of Helena, 16 Mont. 21, 39 P. 905; Hunter v. Montana C. Ry. Co., 22 Mont. 534, 57 P. 140; Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 68 P. 852; Ball v. Gussenhoven, 29 Mont. 328, 74 P. 871; Nord v. Boston & Mont., etc., Co., 30 Mont. 48, 75 P. 681; Birsch v. Citizens' El. Co., 36 Mont. 574, 93 P. 940; Poor v. Madison R. P. Co., 38 Mont. 361, 99 P. 947; Montague v. Hanson, 38 Mont. 376, 99 P. 1063; Badovinac v. Northern P. Ry. Co., 39 Mont. 454, 104 P. 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 A. 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 P. Ry. Co., 45 Mont. 476, 124 P. 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 P. 831; Driscoll v. Clark, 32 Mont. 172, 80 P. 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, because of the property owner's failure to comply with section 8535, Revised Codes. This section is found in title 10 of part 1 of the Penal Code, under the heading: "Crimes Against the Public Health and Safety," and, so far as pertinent to this case, reads as follows: * * *" The contention is that this is a mere penal statute, providing its own express sanction, and, in the absence of appropriate language, gives rise to no civil responsibility whatever. In answer to this we remark that there is by this statute imposed a duty positive and absolute, where none existed before; and it is the well-settled rule that failure to observe such a duty is negligence per se. Osterholm v. Boston & Mont., etc., Co., 40 Mont. 508, 107 P. 499; Neary v. Northern P. Ry. Co., 41 Mont. 480, 110 P. 226; Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 P. 441; Note, 9 L. R. A. (N. S.) 339.
In the Melville Case, decided at the last term of this court, we said: "It is the general rule that, where a statute makes a requirement, or prohibits a thing, for the benefit of a person or class of persons, one injured by reason of a violation of it is entitled to maintain an action against him by whose disobedience he has suffered injury; and this is true whether the statute is penal or not." To this declaration we still adhere as in accord with the express provisions of our Code. A failure to perform an act imposed by law as an absolute duty is an unlawful omission (section 5051, Rev. Codes); and any person suffering detriment by reason of it may recover damages (section 6040, Rev. Codes).
But it is urged that this principle cannot apply in favor of one not within the purview of the statute by which the duty is imposed, and to this we assent; so that the remaining inquiry is: Does the duty imposed by section 8535 apply for the benefit of persons who may by chance be technical trespassers upon mining property? This question, both directly and in its analogies, has been before many courts with apparent diversity of result; but no real difficulty is encountered in extracting a consistent rule out of the apparent conflict of decision, when it is observed that the various statutes involved are interpreted according to substantially this classification: (a) Those imposing duties to or for the benefit of the municipality or to the public considered as an entity. From such statutes no private right of action arises. Heeney v. Sprague, 11 R.I. 456, 23 Am. Rep. 502; Taylor v. L. S. & M. S. Ry., 45 Mich. 74, 7 N.W 728, 40 Am. Rep. 457; Frontier Laundry Co. v. Conolly, 72 Neb. 767, 101 N.W. 995, 68 L. R. A. 425. (b) Those imposing duties to persons of a particular class. To have a right of action from such a statute one must clearly belong to the contemplated class. Osterholm v. Boston & Mont., etc., Co., supra; Toomey v. Southern P. Ry., 86 Cal. 374, 24 P. 1074, 10 L. R. A. 139; Flanagan v. Sanders, 138 Mich. 253, 101 N.W. 581. (c) Those imposing duties to the public, considered as a composite of individuals, in which case a right of action does arise in one of...
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