McCabe v. City of Butte
| Decision Date | 25 June 1912 |
| Citation | 125 P. 133,46 Mont. 65 |
| Parties | McCABE v. CITY OF BUTTE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by Nellie McCabe against the City of Butte. Judgment for plaintiff, and defendant appeals. Reversed on condition.
H Lowndes Maury, John A. Smith, and N. A. Rotering, all of Butte, for appellant.
M. F Canning and P. E. Geagan, both of Butte, for respondent.
This action was brought to recover damages for a personal injury sustained by the plaintiff by a fall caused by a defect in a sidewalk along one of the streets of the defendant. It is alleged that, at the point where the accident occurred, there was, and for more than a year had been, a hole about 12 inches long, 9 inches wide, and several inches deep, rendering the walk dangerous to pedestrians; that the city authorities had failed to use ordinary care to ascertain the existence of the defect and cause it to be remedied; and that plaintiff, being without knowledge of its existence and not warned of the danger by barriers or lights, stepped into it and was thrown violently down, with the result that she was much bruised about her body, arms, and legs, was rendered unconscious, suffered displacement of her pelvic organs, resulting in a miscarriage, followed by severe hemorrhage, etc., by reason of which injuries she has been and will be incapacitated to perform her duties as housewife, and has suffered great physical and mental pain, to her damage in the sum of $20,000. The complaint also alleges special damages in the sum of $475 made up of reasonable and necessary expenses incurred for medical attention, nursing, etc. The answer tenders issue upon all the allegations of the complaint except the corporate capacity of defendant. There was no plea of contributory negligence. The plaintiff had verdict and judgment for $10,475 and for costs. The defendant has appealed from the judgment and an order denying it a new trial, and has submitted for decision two questions, the first of which is based upon the refusal of the court to submit to the jury one instruction requested, and the second upon the refusal of a new trial on the ground that the verdict is excessive.
1. The instruction referred to is the following: "No extraordinary care was required of Mrs. McCabe, but, if there was the slightest want of ordinary care on her part and such contributed directly to her injury, she cannot recover in this case." It is argued by counsel for defendant that the condition of the evidence is such that the jury might have inferred want of ordinary care on the part of the plaintiff contributing directly to her injury, and hence that the defendant was entitled to have its attention called to that aspect of the case by appropriate instructions. It appears from the evidence that the plaintiff in the dusk of the evening of May 26, 1910, in company with her little daughter, was walking rapidly along Thornton avenue, a public street in general use, on her way to the house of an acquaintance residing on Gaylord street. The way by Thornton avenue was the most direct leading to the point on Gaylord street to which the plaintiff was going. To reach her destination, her purpose was to go by way of an alley intersecting Thornton avenue. At the corner of the street and alley was a hole such as is described in the complaint, due to a break in one of the boards forming the covering of the sidewalk. There was no light nor barrier to warn pedestrians of the defect. Plaintiff was about two months advanced in pregnancy. As she was about to turn the corner, she stepped into the hole and was thrown to the sidewalk.
In Nelson v. Boston & Mont., etc., Co., 35 Mont. 223, 88 P. 185, it was held that, where the condition of the evidence introduced by the plaintiff is such that it may justify an inference of contributory negligence, it is proper to instruct the jury on that subject, though the issue is not presented by the answer. Counsel cite and rely upon this case and insist that the court erred in refusing defendant's request. The contention is without merit.
A traveler upon a public street has the right to presume that it is in an ordinarily safe condition, because the law enjoins upon the authorities of the municipality the duty to exercise ordinary diligence to make and keep the streets in a reasonably safe condition for public travel; and when they are rendered unsafe by reason of repairs being made therein, or have become defective or unsafe from any cause, and the authorities have notice of the condition or the circumstances are such as to warrant a presumption of notice, the duty to warn the public by lights or other means, while repairs are made, also arises.
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