Ledbetter v. City of Great Falls, 8882

• Decision Date: 18 January 1950
• Docket Number: No. 8882,8882
• Citation: 123 Mont. 270,213 P.2d 246
• Parties: , 13 A.L.R.2d 903 LEDBETTER v. CITY OF GREAT FALLS et al.
• Court: Montana Supreme Court

Page 246

213 P.2d 246

123 Mont. 270, 13 A.L.R.2d 903

LEDBETTER v. CITY OF GREAT FALLS et al.

No. 8882.

Supreme Court of Montana.

Submitted Sept. 28, 1949.

Decided Dec. 5, 1949.

Rehearing Denied Jan. 18, 1950.

Murch & Wuerther, Great Falls, for appellant.

Clarence W. Murch, Great Falls, Julius J. Wuerthner, Great Falls, argued orally.

William Scott, Jr., Great Falls, for respondents.

R. J. Nelson, County Attorney, Great Falls, argued orally.

Patrick J. Gilfeather, Great Falls, and Edward C. Alexander, Great Falls, amici curiae on petition for rehearing only.

FREEBOURN, Justice.

This is an appeal from an order of the district court of the eighth judicial district of the state of Montana, in and for the county of Cascade, sustaining defendant's demurrer to plaintiff's amended complaint and entering judgment for costs in favor of defendant.

On March 30, 1948, plaintiff filed his amended complaint, the essential allegations of which are: The corporate capacity of defendant; its ownership and control of the street, curbing, boulevard and sidewalk in front of a residence located at 620 Eighth Avenue North in Great Falls, Montana; the existence of a city ordinance, numbered 245, covering the connection of water service pipes between the city main and residence; that on November 6, 1946, one Johnson, a licensed plumber and layer of water service pipes, was given a license and permit by defendant under such ordinance, to lay water service pipes from the water main in the street to the said residence; that immediately after the issuance of the permit and pursuant to the same, a ditch was excavated for the laying of water service pipes from the street main on Eighth Avenue North to the said residence, such ditch being six feet deep and two feet wide, extending from the main past the curb and through the boulevard or parking to the sidewalk; that on November 23rd, in the nighttime, plaintiff, without fault on his part, while walking from 618 Eighth Avenue North to his automobile, parked in the street, having no notice or knowledge of such excavation, fell into the same and was seriously and permanently injured; that such injury was proximately due to failure on the part of defendant to cover such excavation, to inspect the same, or to take any action to see that such excavation was protected by red lights and barricades; and that such excavation had been uncovered, unlighted, unbarricaded and open for sixteen days and nights prior to plaintiff's injury.

Defendant filed a general and special demurrer to the complaint. By stipulation between the parties the special demurrer was withdrawn and the general demurrer argued and submitted to the court. The court sustained the general demurrer, holding the complaint did not state facts sufficient to constitute a cause of action.

Ordinance 245, pleaded in the complaint, provides, among other thing: (1) 'No person * * * shall run any water service pipe * * * who shall not have first obtained from the city council a license for running water service pipes;' (2) that 'the application for a license * * * shall be endorsed by the city engineer * * *' (3) 'Upon the granting of such a license * * * the licensee shall file with the city clerk a bond * * * approved by the city council, conditioned for the protection of the City of Great Falls, against all losses or damages which may occur on account of * * * the carelessness or negligence of the licensee or his * * * employees * * *;' (6) 'before doing any work in connection with * * * any water service or excavating any trench, for the purpose of laying or repairing any water service pipe, the licensee shall obtain from the office of the city engineer a written permit which will give the location, nature and purpose of the proposed work * * *'; (7) 'all new water service pipes shall be laid not less than five feet below the ground surface of the street. Before any trench shall be filled or any pipes covered, said pipes shall be inspected and approved by the city engineer * * *'; (10) 'Barricades shall be placed around excavations at all times and red lights shall be maintained from dark until sunrise.'

It is contended that the complaint does not state facts sufficient to constitute a cause of action and that the demurrer was properly sustained because the complaint did not allege the city had actual notice of the existence of the unbarricaded and unlighted excavation required by section 5080, R.C.M., 1935, as amended by Chapter 122, Laws of Montana 1937, which is as follows:

'Before any city or town in this state shall be liable for damages to person and/or property for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect or obstructions in any bridge, street, road, sidewalk, culvert, park, public ground, ferryboat, or public works of any kind in said city or town, it must first be shown that said city or town had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received; the city clerk must make a permanent record of all such reported defects and shall report to the city street commissioner immediately upon notice of such defect or obstruction; and the person alleged to have suffered such injury or damage, or someone in his behalf, shall give to the city or town council, commission, manager, or other governing body of such city or town, within sixty days after such injury is alleged to have been received or suffered, written notice thereof, which notice shall state the time when and the place where such injury alleged to have occurred. 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, ferryboat or public works of any kind.'

It is the duty of a city, owed to the public generally, to keep its public streets or walks in a reasonably safe condition for travel. Olson v. City of Butte, 86 Mont. 240, 283 P. 222, 70 A.L.R. 1352; Childers v. Deschamps, 87 Mont. 505, 290 P. 261; Headley v. Hammond Bldg., Inc., 97 Mont. 243, 33 P.2d 574, 93 A.L.R. 794; Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809.

This duty extends to dangerous conditions near the sidewalks. Tiddy v. City of Butte, 104 Mont. 202, 65 P.2d 605.

Such duty, as respects the public, rests primarily upon the city, and the obligation to discharge this duty cannot be evaded, suspended or cast upon others, by any act of its own. 4 Dillon, Municipal Corporations, 5th Ed., sec. 1720, pp. 3020, 3021, 3022; Mulder v. City of Los Angeles, 110 Cal.App. 663, 668, 294 P. 485; 6 McQuillin, Municipal Corporations, 2nd Ed., sec. 2834, p. 1158.

The purpose of the notice required in section 5080 is to enable the city to prevent accidents by repairing or guarding the defect or obstruction, thus protecting the traveling public. 25 Am.Jur., 'Highways,' sec. 441, p. 733; 4 McQuillin, Municipal Corporations, 2nd Ed., sec. 1810, pp. 1049-1050.

Section 5080 does not expressly mention excavations, defects or obstructions created by permission of a city. Any reasonable construction of this section, which preserves the primary duty of the city to keep its streets in a reasonably safe condition for travel must be made. A reading of the section clearly leads to the conclusion that the 'defect' or 'obstruction' of which actual notice is required applies only to such as arise and are created without notice, knowledge or permission of the city. That the city must have 'reasonable opportunity to repair such defect or remove such obstruction before such injury', strengthens this conclusion. The city could not 'repair' or 'remove' the water service excavation, giving these words their ordinary meaning, since 'repair' means 'to restore to a sound or good state after decay, injury, dilapidation, or partial destruction,' etc., while 'remove' means 'to change or shift the location of, to remove by lifting, pushing aside,' etc. Merriam's Webster's New International Dictionary.

Here the street could be made safe for travel by filling in the excavation, which would defeat the purpose for which it was opened, or by seeing barricades and red lights were placed. Section 5080 is silent as to these things.

Such excavation disturbed the surface of the street in such a manner and to such an extent as to necessitate the taking of precautions for the protection of travelers. It was inherently or intrinsically dangerous. 25 Am.Jur., 'Highways,' etc. 439, pp. 730, 731.

If it be said that 'defect' and 'obstruction,' as used in section 5080, include an excavation opened in a public street by permission of the city, the requirement of section 5080 that the city be given actual notice was met when the city issued the permit to open the excavation.

When the city granted permission to create the excavation it had actual notice and knowledge of the nature, character and purpose of the excavation, its location, that it would be open within a reasonable time after the issuance of the permit, that it would remain open until the service pipes were in and covered, that the work was in progress, and that such excavation would require barricades and red lights as warnings in order to make the street safe for travel.

There was little difference in the notice and knowledge which the city had when the excavation was opened by its permission and where the city caused the excavation to be opened. Section 5080 specifically states cities shall not be exempt 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.' We believe it would be unreasonable to...