Headley v. Hammond Bldg., Inc.

• Decision Date: 11 June 1934
• Docket Number: 7259.
• Parties: HEADLEY v. HAMMOND BLDG., Inc., et al.
• Court: Montana Supreme Court

33 P.2d 574

97 Mont. 243

HEADLEY v. HAMMOND BLDG., Inc., et al.

No. 7259.

Supreme Court of Montana

June 11, 1934

Appeal from District Court, Missoula County; Theodore Leutz, Judge.

Action by Louise Headley against the Hammond Building, Incorporated and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

H. L Maury and A. G. Shone, both of Butte, for appellant.

Murphy & Whitlock and J. C. Garlington, all of Missoula, for respondents.

ANDERSON Justice.

Plaintiff brought this action for damages for personal injuries alleged to have been sustained in a fall caused by defendants' alleged negligence in allowing a metal strip or cleat to project or protrude above the level of a temporary plank sidewalk along defendants' property in the city of Missoula. The trial of the case terminated upon the court's sustaining a motion for a directed verdict in favor of the defendants. Judgment was entered in accordance with the verdict. Motion for a new trial was made, submitted and denied. The appeal is from the judgment. The plaintiff assigns error on the part of the trial court in sustaining the motion for directed verdict.

The corporation defendant was the owner of a building known as the Hammond Block, located on Higgins avenue in the business section of Missoula. The individual defendants were the officers and directors of the defendant corporation. The Hammond Block was a four-story brick building with stone cornices. It was completely destroyed by fire in the month of October, 1932. The sidewalk on Higgins avenue, the main-traveled street of Missoula, was constructed of concrete. In that portion of the sidewalk along the building were one or more areaways, each containing a stairway. In this walk near the building was located, at various places, prismatic glass. Under at least a portion of the walk, and of the usual depth of the basement, was an excavation which, when the building was occupied, was used by at least one tenant for the storing of merchandise. During the progress of the fire, certain of the cornice stones fell on the sidewalk. Following the fire, the city authorities of Missoula, deeming that the walls remaining standing were dangerous and a menace to the safety of the people of the city, secured the services of a contractor to push over such portions of the walls. In these portions were similar stones, which fell upon the sidewalk. These falling stones broke holes through the sidewalk into the excavated area thereunder. The commissioner of public safety of the city of Missoula ordered the defendants to construct a temporary sidewalk to cover the holes made by the falling stones. A board fence was constructed along the side of the building, but out on the sidewalk a sufficient distance from the remaining walls of the building to exclude the public from that portion of the sidewalk containing the areaways and the prismatic glass. Adjacent to this fence a temporary plank sidewalk was constructed of boards approximately a foot wide and two inches thick, laid end to end lengthwise along the fence. The five feet more or less, of concrete sidewalk between the temporary plank sidewalk and the curb were uninjured, and therefore not covered by a temporary walk.

The board sidewalk rested on supports underneath. After it was constructed, it was accepted and approved by the commissioner of public safety. This temporary sidewalk was constructed in November, 1932. Subsequent to its construction the defendant Pope caused sheet metal strips or cleats, approximately two inches in width, to be nailed across the planks at the points of union of the ends of the boards constituting the walk. These strips of metal, it was testified, were securely nailed to the boards comprising the walk. The city authorities did not order, direct, or give permission to the adding of the metal strips to the walk, although the commissioner of public safety knew of their existence, as did some of his employees. No objection was made by the city to their addition to the temporary walk. The defendant corporation paid the cost of these repairs. The site of the destroyed building and the subsidewalk excavation were not used for any purpose from the time of the fire until the erection of a new building long after the date of the accident here involved.

The plaintiff testified that on March 28, 1932, while she was walking along this sidewalk, the heel of her shoe caught on one of the metallic cleats projecting above the surface of the boards, and caused her to fall and to sustain the injuries of which she complains.

Mrs. Ruby Brome, a witness in behalf of the plaintiff, testified with reference to the condition of the metal strips on the walk as follows: "I could say that from the beginning of the walk to the end of the walk it was bent; some of them bent; some of them broke, and some of them slightly raised. This condition existed for several months before the 28th of March. At least after this sidewalk had been built and after the wear and tear of the many people who walk on that side of the street had taken place, that condition existed."

Many witnesses testified on behalf of the defendants, who directly and positively contradicted the testimony of Mrs. Brome in this respect. However, in considering the question before us, we are viewing the testimony in the light most favorable to the plaintiff, in accordance with the long-established rule of this court on the review of the ruling on a motion for a directed verdict.

This court, in the case of Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809, 811, said: "In this state the fee to the street is in the state; the city is but a trustee thereof (City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593); a sidewalk is but a part of the street. Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 36 L. R. A. (N. S.) 666, 21 Ann. Cas. 1372; Mitchell v. Thomas, 91 Mont. 370, 8 P.2d 639. The city has the same control over, and duties with reference to, the sidewalk as it has respecting any other part of the street. 6 McQuillin on Municipal Corporations, 2796. Primarily the city is charged with the duty of keeping its streets, including the sidewalks, in a reasonably safe condition for travel. State ex rel. Rocky Mt. Bell Tel. Co. v. Red Lodge, Mayor, 30 Mont. 338, 76 P. 758; Cascade County v. City of Great Falls, 18 Mont. 537, 46 P. 437; Mullins v. City of Butte, 93 Mont. 601, 20 P.2d 626."

The record is silent as to the provisions of the ordinances of the city of Missoula with reference to the construction of sidewalks by abutting owners. It does appear, however, that the owners in this instance were ordered by the city authorities to construct the sidewalk. If a city ordinance requires the abutting owner to keep the sidewalk in repair the city's duty to the public is not affected; it merely makes the abutting owner a joint agent with the city officials for the performance of the city's duties. ...