Ernst v. City of Helena

• Court: Montana Supreme Court
• Writing for the Court: SANDS, Chief Justice.
• Citation: Ernst v. City of Helena, 104 Mont. 249, 65 P.2d 1167 (Mont. 1937)
• Decision Date: 12 March 1937
• Docket Number: 7603.
• Parties: ERNST v. CITY OF HELENA.

65 P.2d 1167

104 Mont. 249

ERNST v. CITY OF HELENA.

No. 7603.

Supreme Court of Montana

March 12, 1937

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by Caroline Ernst against the City of Helena, a municipal corporation. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

John W Mahan, of Helena, for appellant.

Loble & Adair, of Helena, for respondent.

SANDS Chief Justice.

Plaintiff brought this action against the defendant City of Helena to recover for personal injuries suffered in a fall upon a sidewalk. So far as pertinent here, the complaint alleges that upon the easterly side of the sidewalk of a designated block on North Jackson street in the City of Helena the defendant negligently and carelessly suffered and permitted a certain wooden block, approximately seventeen inches long and eleven inches wide and held in place by four iron bolts, to be fastened and attached in and on the sidewalk and to be approximately three inches or more higher than the surface of the sidewalk, and approximately three inches or more higher than the portion of the walk immediately adjacent thereto causing the walk to be uneven, defective, unsafe, and dangerous for persons traveling thereon, and that at all times the block of wood and the iron bolts attached thereto constituted and were an obstruction on the sidewalk, and that the sidewalk on the day of the injury to plaintiff was, and for more than a year prior thereto had been, in a dangerous and defective condition; that it was by reason thereof unsafe for persons to walk thereon, all of which was well known to the defendant city and of which it had actual knowledge, or in the exercise of ordinary care or reasonable diligence, could or should have known; that plaintiff was a large woman of the age of 74 years; that for a person of her age she was strong and able-bodied and did and performed all of the household work and duties for herself and her family; that on the evening of October 25, 1932, plaintiff was lawfully walking along the sidewalk in question, wholly unaware of danger and without fault on her part, when her foot struck the aforementioned block of wood and then and there tripped against and fell over it, was thrown violently to the sidewalk and sustained a broken right arm, bruised and injured the patella bone of her right leg as well as her right side, and that her entire nervous system suffered a severe shock, and that the injuries so received are permanent in character.

A general demurrer to the complaint was overruled without argument. Defendant's answer denies all material allegations of the complaint and, by way of affirmative defense, alleges contributory negligence. Plaintiff's reply denies all allegations contained in the affirmative defense.

The cause was tried before the court and a jury. At the close of all the evidence defendant moved for a directed verdict on the grounds that the evidence was insufficient to sustain the verdict and judgment, and that plaintiff's own case presented evidence prima facie making out contributory negligence on her part. The motion was argued and denied. The jury returned a verdict for the plaintiff in the sum of $1,500. The court gave judgment thereon. There was no motion for new trial. The appeal is from the judgment and is based upon two specifications of error: (1) The court erred in overruling defendant's motion for a directed verdict; and (2) the court erred in entering judgment in favor of the plaintiff.

The controversy upon the sufficiency of the evidence is limited here, by brief and argument of appellant city, to the contention that plaintiff's own case presented evidence making out prima facie contributory negligence on her part, and that such evidence failed to exculpate respondent from contributory negligence. There is no contention that plaintiff failed to establish the elements of actionable negligence. The following is a summary of the evidence upon which defendant city relies in support of its argument:

Plaintiff had been walking over the defective sidewalk since it was constructed, a period of approximately 13 years, and knew that the block of wood and bolts were there. At the time of the accident and injury, plaintiff was proceeding in "an ordinary walk" or "in the ordinary gait." On direct examination she testified: "You ask if anything happened there to frighten me; Oh, a dog was barking and I thought he was coming after me. As to whether I tried to get away from the dog, I looked a little sidelong and then came across the wooden block; there is where I fell." And on cross-examination she stated: "You...