O'Donnell v. City of Butte

• Decision Date: 21 December 1922
• Docket Number: 4920.
• Citation: 211 P. 190,65 Mont. 463
• Parties: O'DONNELL v. CITY OF BUTTE.
• Court: Montana Supreme Court

211 P. 190

65 Mont. 463

O'DONNELL v. CITY OF BUTTE.

No. 4920.

Supreme Court of Montana

December 21, 1922

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by Catherine C. O'Donnell against the City of Butte. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. O Davies, of Butte, for appellant.

Wm Meyer and N. A. Rotering, both of Butte, for respondent.

FARR J.

Plaintiff, a girl, then about 21 years of age, some time between 5 and 6 o'clock on March 1, 1920, in returning home from her work as an office clerk, accompanied by her sister, was walking east on the north side of Broadway street in the city of Butte, and in crossing Hamilton street at its intersection with Broadway, slipped and fell, breaking her leg. She brought this action to recover damages for the injuries sustained by her. From a verdict in her favor for $10,000 and the judgment entered thereon, the defendant appeals to this court.

Defendant, by specification of error, questions the sufficiency of the evidence to sustain the verdict.

The complaint, the sufficiency of which is not here questioned, charges that the defendant city on the day of the accident, and for more than five days immediately preceding, "did negligently, carelessly and knowingly * * * allow and permit snow and ice to accumulate and remain on the said crosswalk along the northerly side of said Broadway across Hamilton street, and especially at a point about seven feet from the curbing along the sidewalk on the east side of Hamilton street, the surface of which said accumulation of snow and ice during all of said time was rough, rounded, rigid, uneven, slippery and slanting."

It is also alleged, in substance, that Hamilton street, as it approaches Broadway street, has a considerable downgrade, and that during the middle of the season the snow and ice thereon frequently thaw and melt, and the waters therefrom drain down and upon the crosswalk; and that during the period of time referred to in the complaint the snow and ice were frequently melted and thawed and waters therefrom were permitted to run down, and over, and upon, the accumulation of snow and ice upon the crosswalk and by subsequently freezing the danger to pedestrians in crossing and using the crosswalk became great; that it was the duty of the city to remove said condition or prevent the same from continuing to exist; that the defendant and its officers knew, or in the exercise of reasonable care and diligence should have had knowledge, of said condition; and that they failed and neglected to remove the same, and, at the time of the happening of the accident to the plaintiff, the crosswalk was in the condition described, and had been in such condition for a period of more than five days immediately prior thereto.

It should be kept in mind that at this particular street crossing, so far as the surface of the street is concerned, there is nothing to distinguish that portion used by the public in crossing from one side of the street to the other, from other parts of the street. The crossing was a portion of the street pavement, as is now common in cities having paved streets. The pavement was the kind known as "Bitulithic," described as a smooth, black surface pavement in appearance. At each corner of the street intersection is a catch-basin, to catch the water coming down the streets. While some of the plaintiff's witnesses speak of the street as being "slanting" at this particular crossing place, we think it fairly inferable from the evidence that the "slant" was not very pronounced. The commissioner of public works gives the most intelligent testimony as to its grade, although his evidence is not as clear or definite as it would seem it might have been. He testified that the grade up into Hamilton street is slight to the south and nearly level east and west; "that the gutters are lower than the center and the pavement is higher in the center." This street intersection is in the business district of the city and the traffic at this point by pedestrians and by vehicles is heavy.

Plaintiff, testifying in her own behalf, in referring to the accident, says that--

"After going about three-quarters of the way there was an accumulation of dirty, black, thick ice, very rugged. * * * As I was crossing and as I reached almost the east side of the crossing my foot slipped from under me. When my foot slipped from under me, it went clear back; my whole body fell back; the back of my head struck the ground. As I was lying on the ground my left leg was bent under me."

This is the only reference made by the plaintiff in her testimony to any ice, and it is to be observed that neither she nor any of her witnesses make any reference to any snow on the ice at or near the point where she fell.

Howard M. Rich testified for plaintiff that at about 5:15 that evening, while walking on the east side of Hamilton street towards Broadway, he saw the plaintiff and her sister crossing Hamilton street and saw plaintiff fall; he being at the time about 50 to 100 feet distant. In referring to the place where she fell and to the ice, he testified on direct examination as follows:

"I should say that Miss O'Donnell fell seven or eight feet from the curb on the east side of Hamilton street. * * * The condition between the curb and the place where Miss O'Donnell fell was a big heap of ice. * * * Upon the crosswalk, according to my best recollection, there was about three inches of ice. The condition of the ice was very smooth in places and jagged in others. By jagged I mean rough ice, smooth nature. It was upon that ice that Miss O'Donnell slipped and fell. Miss O'Donnell was on the crosswalk when she slipped and fell. * * * I observed the crosswalk on which Miss O'Donnell fell prior to the time she fell. I observed it with reference to ice conditions prior to the time she fell. I know that the ice upon which Miss O'Donnell fell had been there practically all winter, some ice. * * * That ice was there, with reference to March 1, 1920, at least two or three weeks to my knowledge. The condition of the ice where Miss O'Donnell fell and its condition between there and the curb was smooth in some places and a little jagged in others, making it in general a smooth ice. I mean a slippery surface. * * * I said before it was a smooth surface at that place. Q. What do you mean? Was it thicker in some places than others, or was it the same thickness? A. It was thicker in places. It was a slippery place there. I should judge a little thicker. Q. You mean the ice was uneven and slippery? A. Yes. * * * I said before that the way I saw the condition of the ice upon the crosswalk as it extended from the east side of Hamilton street to the west side of Hamilton street was of a smooth nature at that place. * * * I don't recollect whether it was snowing that day or not. There was no snow on this ice at that time. Just a smooth, slick surface. I don't remember anything about the precipitation or moisture that day in the form of snow. I don't recollect whether it had snowed or not."

Plaintiff's sister, Dora O'Donnell, who was accompanying her at the time, testified relative to the place of the accident and to the ice, on direct examination, as follows:

"We were walking over that crosswalk very slowly. She slipped and fell and her knee went under her. She slipped on the ice. When my sister slipped and fell, we were seven or eight feet west of the curb on the east side of Hamilton street. When my sister slipped and fell, I would imagine there was about four inches of ice or the ice was four inches thick where she slipped and fell. That ice was dirty, black ice, rough, very slippery and uneven, thicker in some places than others. * * * I had seen that crosswalk * * * three or four weeks before the 1st day of March, 1920. During that time it was in about the same condition it was when my sister fell. It had been in that condition at least two weeks, probably more. The ice extended from the point where my sister fell clear up to the curb of the sidewalk on the east side of Hamilton street. * * * It was higher in some places than others because the crossing is slanting. By that I mean there is a grade to the south, going down."

On cross-examination she said:

"I think it was freezing and thawing during that period. There was a great deal of traffic along there. * * * The ice was uneven. It was slippery ice. I don't know what made it uneven. I don't remember that it snowed that day. I am quite sure the sidewalks were clear. I know there was no snow on Hamilton street at that time. It was a wonderful day, but I don't know whether it was thawing or freezing at the time we went over there. There was no water running down across the street that I remember. I don't know whether I would remember whether there was or not. * * * Describing how she fell, she simply slipped on the slippery ice and her leg went under her; her head went back and hit the pavement, flat on her back. Her leg someway got twisted up. I don't know how her leg slipped. * * *"

On redirect examination she said:

"We were on the crossing proper, in the middle. I can't really remember whether it was freezing or thawing on that particular day. It must have been thawing previous to the 1st day of March in order to leave the ice. The water from the melted snow immediately north of the crossing would come over the crossing, because that is a slanting street."

Hazel Frances Keefe, who was employed in the business establishment situate on the northeast corner of Broadway and Hamilton testified on direct that--

"I had occasion to observe this crossing between the east and the west side of Hamilton street, as I passed there every day on my way to...