Gilligan v. City of Butte

• Decision Date: 05 March 1946
• Docket Number: 8278.
• Citation: 166 P.2d 797,118 Mont. 350
• Parties: GILLIGAN v. CITY OF BUTTE.
• Court: Montana Supreme Court

166 P.2d 797

118 Mont. 350

GILLIGAN v. CITY OF BUTTE.

No. 8278.

Supreme Court of Montana

March 5, 1946

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

Action by Hazel Ann Gilligan, a minor, by her guardian ad litem against the City of Butte to recover damages for bodily injuries. Judgment for plaintiff and defendant appeals.

Affirmed.

P. E. Geagan, of Butte, for appellant.

W. H Maloney and Philip O'Donnell, both of Butte, for respondent.

ADAIR Justice.

Hazel Ann Gilligan, an infant five years and nine months old, while playing on a public street at the rear of her home in the city of Butte on Sunday afternoon June 18, 1939, was severely burned and permanently injured when her dress caught fire from the flames of an open torch or flare which it is alleged the defendant city negligently left, suffered and permitted to be and remain burning, unguarded and unattended, during the daylight hours in the afternoon of said day on said street, being in a residential district of the city and known by the defendant to be much used and frequented by children of tender and immature years. The infant through her guardian an litem brought this action against the city of Butte to recover damages for the bodily injuries so inflicted.

In her complaint plaintiff alleges the appointment of her father as guardian, the corporate existence of the defendant; that at the time of suffering her injuries she was of the age of five years and nine months, and residing with her father and mother at No. 734 East Mercury street in a densely populated residential district in the city of Butte; that East Mercury and Division are parallel streets extending in an easterly and westerly direction and intersecting South Gaylord street (the latter running in a northerly and southerly direction), at the east end of the 700 block wherein plaintiff resided; that the lot of ground on which plaintiff resided extended north to and fronted on East Mercury street and that such lot extended southward from East Mercury street to Division street; that during the daytime there was much vehicular traffic on both East Mercury and South Gaylord streets but that there was very little traffic upon Division street; that children of tender and immature years residing in said district were in the habit of avoiding East Mercury street and South Gaylord street and of being upon and playing upon Division street in the 700 block and using the same for all of the purposes of a public highway and thoroughfare, especially in the daylight hours of each day, all of which was well known to the defendant, its servants, agents and employees, or by the exercise of reasonable care on their part, would have been known to them; that for several days immediately prior to the happening of the accident the defendant was engaged in repairing and resurfacing Division street and in that connection had piled and heaped, in a ridge running lengthwise of said street, large quantities of loose oiled sand; that at various points along said ridge defendant had placed lighted oil flare lamps which it had permitted to burn during all the daylight hours of the day of the accident; that said flare lamps were in the shape of globes or spheres and resembled black balls of about 8 to 10 inches in diameter; that a wick fed by oil protruded from the flares through an opening above which there was a cap so set that when the flare was burning the flame therefrom was prevented from rising directly upward but instead was deflected and caused to blaze to either side of the cap in such manner that the flame extended from the opening and to the side thereof; that there were no guards upon or around the flares or around the flames proceeding therefrom; that no barrier or other obstruction was placed around said ridge of sand so left in the street; that no watchman was stationed at or near the places where such flares were burning to warn children including plaintiff and other persons using said street of danger or to prevent them from coming in contact with the flames from such flares; that defendant well knew or in the exercise of reasonable care should have known that such lighted flares so left burning in the daytime constituted a danger to children of tender and immature years and exposed them to the danger of being burned by the flames from the flares; that at all times the defendant, its servants, agents and employees further well knew, or in the exercise of reasonable care, they should have known, that neither law nor custom required nor sanctioned the use of such lighted flares upon public thoroughfares during the daylight hours and that such use was contrary to the usual custom in the city of Butte and county of Silver Bow as well as generally; that at various times during the day of the accident several children were playing in the loose sand upon Division street and by the ordinary predilections and impulses of normal children were attracted to and induced to play upon such street and upon the sand therein under the aforesaid conditions; that defendant, its servants, agents, and employees, with the knowledge and under the circumstances above set forth carelessly, recklessly, negligently and knowingly placed, lighted and permitted said burning flares to be and remain on and along said ridge of loose sand on Division street during the daylight hours of Sunday June 18, 1939; that at about 5 o'clock in the afternoon of said day, it then being daylight on a clear day with the sun shining, the plaintiff, unable because of her age and immaturity, to perceive or appreciate the danger confronting her, came and played upon said ridge of sand, being attracted to said street and sand and burning flares, and that without perceiving or appreciating the danger there existing, plaintiff's clothing came in contact with the flame of one of the flares and caught on fire as a direct and immediate consequence of which plaintiff suffered the burns and injuries which she set forth and described in detail in her pleading, to plaintiff's loss and damage in the amount demanded.

By answer defendant admitted certain allegations of the complaint and denied all others including all allegations charging it with negligence.

As a first affirmative defense defendant alleged that at the time of the accident the construction work on Division street, including the placing of loose sand and gravel on the street and the placing of flares thereon, was done by Works Projects Administration through its agents, employees and servants as a WPA project sponsored by the defendant and that in sponsoring, supervising and conducting the said project the defendant city was acting in its governmental capacity for the purpose of alleviating unemployment and of giving employment on public works projects to citizens of the defendant city.

As a second affirmative defense defendant alleged that 'plaintiff is a minor child and as this defendant is informed and believes was at the time of the accident alleged * * * of the age of approximately five (5) years and nine (9) months' and that the plaintiff was guilty of contributory negligence which precludes recovery herein.

By her reply plaintiff denied generally the new and affirmative matters pleaded in the answer.

The cause was tried to a jury which rendered its verdict for plaintiff awarding her damages. From the judgment entered on such verdict the defendant city has appealed.

Defendant asserts that the trial court erred in denying its motion for judgment of nonsuit and its motion for a directed verdict made upon identical grounds, and in giving, over defendant's objections, instructions numbered 10 and 11.

The motion for nonsuit and the motion for a directed verdict first challenge the sufficiency of the allegations of the complaint to state a cause of action.

In an action to recover damages for actionable negligence the complaint must allege facts showing three elements, namely: (1) That the defendant was under a legal duty to protect plaintiff from the injury complained of; (2) that the defendant failed to perform such duty; and (3) that the injury complained of was proximately caused by defendant's delinquency. Johnson v. Herring, 89 Mont. 156, 167, 295 P. 1100.

It is well settled law of this state that it is the duty of a municipal corporation to keep its streets in a reasonably safe condition for use by the public. Headley v. Hammond Bldg., Inc., 97 Mont. 243, 248, 33 P.2d 574, 93 A.L.R. 794; Maynard v. City of Helena, Mont., 160 P.2d 484. The officials of the municipality are charged with the duty to keep in touch with the condition of the streets and alleys of the municipality (Barry v. City of Butte, 115 Mont. 224, 229, 142 P.2d 571) and if they negligently fail in the performance of that duty the city is liable for the damages resulting therefrom unless contributory negligence is shown. Tiddy v. City of Butte, 104 Mont. 202, 65 P.2d 605; Barry v. City of Butte, supra.

The general public has the right to the use of the public streets of a city and such streets are open to persons of all ages. The municipality owes a duty of care toward children rightfully upon and using its streets and a child in the street is not in any sense a trespasser, even though the child is using the street for the purposes of play. City of Chicago v. Keefe, 114 Ill. 222, 2 N.E. 267, 55 Am.Rep. 860; City of Waverly v. Reesor, 93 Ill.App 649; City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155, 58 Am.Rep. 65; Corbin v. City of Philadelphia, 195 Pa. 461, 45 A. 1070, 49 L.R.A. 715, 78 Am.St.Rep. 825; Gibson v. City of Huntington, 38 W.Va. 177, 18 S.E. 477, 22 L.R.A. 561, 45 Am.St.Rep. 853; Hawley v. City of Atlantic, 92 Iowa 172, 60 N.W. 519; City of Omaha v....