Green v. City of Roundup

• Decision Date: 18 April 1945
• Docket Number: 8512.
• Parties: GREEN v. CITY OF ROUNDUP.
• Court: Montana Supreme Court

157 P.2d 1010

117 Mont. 249

GREEN v. CITY OF ROUNDUP.

No. 8512.

Supreme Court of Montana

April 18, 1945

Appeal from Fourteenth District Court, Musselshell County; W. C Husband, Judge.

Action by Cora Green against the City of Roundup for personal injuries sustained when an automobile in which plaintiff was a passenger was driven into a ditch excavated by defendant in a street. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

F. N Hamman and Lloyd I. Wallace, both of Polson, for appellant.

G. J Jeffries, of Roundup, for respondent.

CHEADLE Justice.

The former opinion herein, dated March 17, 1945, was withdrawn by order granting petition for rehearing, and the following decision rendered upon final submission on rehearing.

This action was brought against the city of Roundup to recover damages for personal injuries alleged to have been sustained as the result of the driving of an automobile, in which plaintiff was a passenger, into a ditch or trench excavated by the defendant city in one of its streets. The complaint alleges negligence by the excavation of the trench or ditch and failure of the city to place danger or warning signs calling attention to such condition. At the conclusion of plaintiff's case the defendant moved for a judgment of non-suit, which motion was granted and the action dismissed. Motion for a new trial was denied.

It was neither alleged nor proved that written notice of the injury was given the city as provided by section 5080, Revised Codes, as amended by Chapter 122, Laws of Montana, 1937. The trial court held, as appears by its memorandum opinion, that failure to allege and prove the giving of such notice was fatal to plaintiff's cause and that the city could not be held liable in the absence of a showing that it had been given. Appellant contends that the proviso contained in the 1937 amendment dispensed with the necessity of such notice under the circumstances of this case.

Section 5080, prior to the 1937 amendment, provided: "Before any city or town in this state shall be liable for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public ground, ferry-boat, or public works of any kind in said city or town, the person so alleged to be injured, or some one in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred."

The amendment adds a provision that before a city or town shall be liable for damages by reason of any such defect or obstruction, it must first be shown that it had actual notice thereof and reasonable opportunity to repair or remove the same before such injury or damage was received. The requirement of notice of the injury, above quoted, was retained in the section with the further requirement that such notice shall be in writing. The provision for actual notice of the defect or obstruction appears in the present law ahead of the provision for written notice of the injury, the two provisions being separated by a semicolon. The amendment added the following proviso, which appears as the concluding sentence in the section: "Provided, however, that this section shall not exempt cities and towns from liability for negligence because of failure to properly place signs, markers or signals to warn persons of excavations or other obstructions existing and caused by said city or town, upon any bridge, street, alley, road, sidewalk, pavement, culvert, park, public ground, ferry-boat or public works of any kind."

Appellant's first specification of error is that of the trial court's interpretation of section 5080, Revised Codes, as amended, as applied to this case.

This section was enacted as section 1, Chapter 93, Laws of 1903 and remained in its original form until amended in 1937. The problem confronting us is the determination of the intention of the Legislature by the adoption of the amendment, in so far as it affects this case. Respondent argues that the legislative intent was to restrict the liability of cities and towns for damages resulting from defects in streets, sidewalks, etc., and that, therefore, the exemption must be construed as applicable only to the requirement of actual notice of defects, under certain conditions, and not to the requirement of notice of the injury. Obviously, the effect of the whole amendment was to restrict the liability of cities and towns, and no doubt the Legislature so intended. But a consideration of the language used in the proviso does not permit us to conclude that the Legislature did not intend that, under the conditions enumerated, the requirement of notice of the injury should be removed. The court can neither legislate, nor substitute its judgment for that of the Legislature. In construing legislative enactments our function is to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted, and, where there are several provisions, to adopt such a construction, if possible, as will give effect to all. Sec. 10519, Revised Codes; Maki v. Anaconda Copper Min. Co., 87 Mont. 314, 287 P. 170; Clark v. Olson, 96 Mont. 417, 31 P.2d 283. Where the terms of a statute are plain, unambiguous, direct and certain, the statute speaks for itself; there is naught for the court to construe. Chmielewska v. Butte & Superior Mining Co., 81 Mont. 36, 261 P. 616. While it is the general rule that it is the duty of this court to ascertain the intention of the Legislature,...