Leonard v. City of Butte
| Decision Date | 17 June 1901 |
| Citation | 65 P. 425,25 Mont. 410 |
| Parties | LEONARD v. CITY OF BUTTE. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; John Lindsay, Judge.
Action by Philip P. Leonard against the city of Butte. From a judgment for plaintiff, and an order denying a new trial defendant appeals. Affirmed.
E. M Lamb, for appellant.
M. J Cavanaugh, for respondent.
This action was brought by the plaintiff to recover damages for personal injuries alleged to have been caused by a defect in a sidewalk upon one of the principal streets of the defendant while plaintiff was traveling thereon. There were a verdict and a judgment for plaintiff. The appeal is from the judgment and an order denying a new trial. The questions presented to this court are whether the evidence is sufficient to justify the verdict, and whether the court misdirected the jury to the prejudice of the defendant.
1. Counsel for the defendant contends that the evidence is insufficient to justify the verdict, in two particulars: (1) In that no defect was shown to exist in the sidewalk in question; and (2) in that, though a defect was shown to exist, it was not known to the defendant.
From the evidence it appears that the walk in question was upon the east side of Main street, between Quartz and Granite streets, and that there was a great deal of travel over it. It was constructed in 1892 of cement flags about three feet square. The grade of the street and walk at that point is considerable. From some imperfection in construction, four of these flags, covering a space about six feet square near the middle of the walk, in front of Mullins' grocery store became chipped and broken to such an extent that in the spring or summer of 1895 they were removed, and four others substituted in place of them. The substituted flags differed in appearance from the rest of the walk; no coloring matter having been used in their construction, as was the case with those first laid. They seemed to be unusually hard and smooth; some of the witnesses stating that they had a hard, greasy, or oily appearance, and were as smooth as glass. The employés in Mullins' store first observed persons slipping and falling at this point in the fall of 1895. After that time such occurrences were very frequent. One witness states that while he was working for Mullins, between November, 1895, and January, 1896, he saw as many as 25 persons fall there; on some of these occasions he saw city officials in the neighborhood, and once a policeman assisted a woman who had fallen. Another states that he saw as many as 100 persons slip and fall there at various times before the accident by which plaintiff was injured. These accidents always occurred at the point where the four new flags had been laid, and became so frequent that they were the occasion of a great deal of mirth to other persons in the vicinity who observed them. This witness went to work for Mullins on November 3, 1895. To prevent accidents to Mullins' employés and customers, as well as others, he put dirt or sawdust upon this portion of the walk two or three times a day. He himself fell there and broke his kneecap on July 31, 1896. Accidents always befell passengers going down the street. Those going up experienced no trouble. The condition of the weather made little or no difference. This condition of the walk remained unchanged until after plaintiff fell there on the morning of December 11, 1896, when, under the direction of Mullins, this witness and another of his employés cut grooves with a chisel in the surface of these four flags at right angles with the line of grade. After this no accidents occurred. Under the ordinances of the city, abutting lot owners are required to construct and keep in repair the walks in front of their property. The construction and repairs are required to be of such material as is prescribed by ordinance or resolution of the city council, and to be done to the satisfaction of the street and alley committee or the street commissioner, under the superintendence of the city engineer. It is the duty of the city marshal and all policemen to report to the street commissioner any defects in sidewalks, and, in case of accident, to report the same to the city attorney, with the names of the witnesses. The city engineer is required to fix the grade of the streets and sidewalks, and to see that all work of construction and repairing is properly done. These ordinances were in force at the time of the accident. In this particular instance neither the original construction nor the work of repair was ever formally approved by the city authorities, all having been done under contract let by the abutting owner. A great deal of evidence was introduced by defendant tending to show that the flags used in repairing the walk were of good materials, properly proportioned, and that the walk was as good as any other of similar construction in the city. There is no proof tending to show that any person made complaint to any of the city authorities about the condition of the alleged defect, though it does appear that such complaint was made to the owner of the building from whom Mullins leased his store.
Counsel argue that upon this evidence this court should declare, as a matter of law, that no defect was shown to exist in the sidewalk in question. The position thus assumed is untenable. There is no controversy upon the evidence but that passengers descending along this walk experienced difficulty in retaining their footing at the point where the repairs had been made, and often met with disaster. We are unable to see why a smooth and slippery condition of a walk, caused wholly by the peculiar construction of it, or resulting from wear by use of the material of which it is composed, may not be a defect, as well as a condition resulting from a fault in construction or from natural decay. A sidewalk upon which a person cannot step without peril of limb from slipping and falling seems equally as defective as one upon which he is constantly in danger of falling from stumbling, or in which there are unguarded openings rendering passage over it dangerous. It was held by the Illinois court of appeals in City of Centralia v. Baker, 36 Ill.App. 46, that it was a question for the jury whether a sidewalk on the principal street of the village was defective and dangerous because one of the...
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