Maynard v. City of Helena

• Decision Date: 05 July 1945
• Docket Number: No. 8552.,8552.
• Citation: 117 Mont. 402
• Parties: MAYNARD v. CITY OF HELENA.
• Court: Montana Supreme Court

117 Mont. 402

MAYNARD

v.CITY OF HELENA.

No. 8552.

Supreme Court of Montana.

May 25, 1945.

Rehearing Denied July 5, 1945.

Appeal from District Court, First District, Lewis and Clark County; George W. Padbury, Jr., Judge.

Action by Marie Maynard, administratrix of the estate of James M. Lewis, deceased, against City of Helena to recover damages for death of plaintiff's decedent. From a judgment for plaintiff, the defendant appeals.

Affirmed.Lester H. Loble, Albert H. Angstman, and Albert Anderson, all of Helena, for appellant.

Sherman W. Smith, of Helena, for respondent.

E. C. COMER, District Judge (sitting in place of Justice ADAIR, disqualified).

This is an action brought by the plaintiff and respondent, Marie Maynard, as administratrix of the estate of James M. Lewis, deceased, to recover damages for the death of said decedent, against the defendant and appellant, City of Helena. The issues herein are fairly stated by the defendant and appellant in its statement of the case as follows:

‘Plaintiff brought this action to recover damages for the death of James M. Lewis who died at the age of twelve years. The complaint alleges that he met his death while riding a bicycle on Pine Street, in the city of Helena, at a point near where it intersects with Water Street; that at that point there was a drop-off or bank ten feet in height, reinforced by a stone wall, and that no barriers were erected and no warning signs placed to advise the traveling public of the drop-off, which drop-off was at the south end of said Pine Street, which street sloped at an angle of about fifty degrees to the stone wall in question; that Pine Street makes a sharp turn to the right before it reaches the drop-off and that James Lewis failed to turn to the right but continued over the drop-off where he met death. The negligence of the city is alleged to have consisted of its failure to erect a retaining wall or other barrier at the point in question and of its failure to warn said James Lewis of the fact that the road turned sharply to the right and that there was a drop-off at the point in question. General demurrer to the complaint was overruled and defendant answered.

‘The answer admits that James Lewis met death by riding down Pine Street and over the embankment or drop-off, but denies the other allegations of the complaint. As a first affirmative defense the answer alleges that his death was due to and caused by his own negligence and carelessness and that if defendant was in any manner negligent, still his death was due to his own contributory negligence. As a second affirmative defense the answer alleges that James Lewis failed to comply with the city ordinances requiring the licensing of his bicycle and that in consequence he was a trespasser on the street in question and the only duty owed to him by defendant was to refrain from wantonly or intentionally injurying him and that defendant did not wantonly or intentionally injure him. As a third separate defense defendant alleges that the injuries and death of James M. Lewis was due to the negligence and carelessness of Marie Maynard, the plaintiff, in allowing and permitting him to ride his bicycle on the street in question. As a fourth separate defense the answer sets forth that no notice was given to the city as required by section 5080, as amended. The reply put in issue the affirmative allegations of the answer. Verdict was for plaintiff in the sum of $7,000 and judgment was accordingly entered. Motion for new trial was denied and this appeal taken from the judgment.’

The defendant and appellant alleges in its brief ten assignments of error by reason of which it is contended the verdict and judgment given and made in favor of the plaintiff and respondent, and against the defendant and appellant, by the district court, should be set aside. We will take these assignments up in their order.

(1) The first assignment of error is that the district court erred in overruling the general demurrer of the defendant and appellant, City of Helena, to the complaint herein, for the reason the said complaint fails to state facts sufficient to constitute a cause of action against the defendant, and the basis of the argument is that there is no allegation in the complaint alleging the giving of a notice to the respondent city of the time and place where the injury is alleged to have occurred, resulting in the death of the plaintiff's intestate, Lewis, as provided for in section 5080, of the Revised Codes of 1935, as amended by Chapter 122 of the Session Laws of 1937.

This assignment of error must be overruled. The same question was raised and decided adversely to the contention of the respondent herein, in the case of Green v. City of Roundup, Mont., 157 P.2d 1010, in an able opinion rendered on April 18, 1945, concurred in by all of the justices of this court, wherein the question was given thorough consideration, and the reasons for the decision clearly and definitely stated. We are of the opinion that the district court properly overruled the demurrer of the defendant and appellant, City of Helena.

(2) Assignment of Error No. 2 is that, the court erred in overruling the defendant'sobjection to the introduction of any evidence, and involves the same question as Assignment No. 1, i.e., the sufficiency of the complaint, and we think it without merit.

(3, 4) The third assignment of error alleges that the court erred in denying the motion for non-suit, and the fourth assignment is that the court erred in denying motion for directed verdict. The defendant and appellant urges in support of these two assignments that the deceased minor, Lewis, was guilty of contributory negligence, and urges that these two boys, before proceeding down the hill in question, stopped and talked the matter over, and counsel for defendant and appellant further urge ‘that they knew the hill was steep and dangerous; they could see the road curved at the bottom of the hill; they had just as much warning as they would have had had there been a warning sign, no matter how large, at the top of the hill. With knowledge of the danger, they proceeded down the hill. We think the court should have ruled, as a matter of law, that his own negligence caused the death of the Lewis boy.’

Counsel for plaintiff and respondent contend there is no evidence here of contributory negligence, and direct attention to the fact that Jack Burrell, the boy who rode down the hill with Lewis, testified that it was not until he just got about down to the corner that he first knew there was a drop-off, and that he could not bring his bicycle to a stop, because the ground was too soft and the gravel was too loose, and that he was not racing down the hill; that he had never been down Pine Street before; that Jimmie Lewis, decedent, had never been down the hill before; that he had no knowledge whatsoever that if he and the Lewis boy continued down Pine Street, there was a drop-off of ten feet at the end of Pine Street into the next street below, and that when he first found there was a ten-foot drop-off at the end of the street, it was after they had started, and after they had gotten almost to the bottom before he knew it was there. That there is evidence to show that Jimmie Lewis was a well and healthy boy, and normal in every way, and that the bicycle on which the Lewis boy was riding, and the brakes thereon, were in excellent shape.

Counsel for plaintiff direct attention also on the question of contributory negligence; that the city engineer testified that he had been up on Pine Street where it intersects Water Street a few times, and that he did not go down Pine Street because it was very dangerous, very steep, and there was a right-angle turn at the bottom, and that he would feel far safer going down Joliet Street than Pine; that there were no warning or other signs at the top advising that Pine Street was dangerous;that standing at the top of Pine Street, no determination could be made that the street made a right-angle turn to the right at the bottom, and also, that Otto Krieg, one of the City Commissioners, testified you could stand at the intersection of Joliet and Pine Streets, and see that Pine Street made a right-angle curve at the bottom, while another member of the city council said you could not see the bottom of the hill from the top of the hill.

It is the settled law of this state for many years past, that where the evidence is conflicting as to whether the defense of contributory negligence has been established, the question is one of fact for the jury to determine. Montague v. Hanson, 38 Mont. 376, 99 P. 1063;Ahlquist v. Mulvaney Realty Co., Mont., 152 P.2d 137. The question of contributory negligence was submitted to the jury herein on proper instructions, and by their verdict, the jury has determined the deceased herein was not guilty of contributory negligence, and the determination of the jury is final and should not be disturbed. Williams v. Hample, 62 Mont. 594, 205 P. 829;Carey v. Guest, 78 Mont. 415, 258 P. 236;Marsh v. Ayers, 80 Mont. 401, 260 P. 702;Olson v. City of Butte, 86 Mont. 240, 283 P. 222, 70 A.L.R. 1352;Armstrong v. Billings, 86 Mont. 228, 283 P. 226;Autio v. Miller, 92 Mont. 150, 11 P.2d 1039;Pierce v. Safeway Stores, 93 Mont. 560, 20 P.2d 253;Wise v. Stagg, 94 Mont. 321, 22 P.2d 308;Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025;Toole v. Paumie Parisian Dye House, 98 Mont. 191, 39 P.2d 965. We find no merit in this assignment of error.

(5) The fifth assignment of error is that, the court erred in denying the defendant's motion for a new trial, and in support thereof the defendant and appellant urges two propositions of law, viz.:

(a) That the verdict is contrary to the law as given by the court to the jury in its Instruction No. 24. Said Instruction No. 24 was given at the request of the defendant, City of Helena, and is as follows:‘You are instructed if you find that James M....