McEnaney v. City of Butte

• Decision Date: 05 October 1911
• Citation: 117 P. 893,43 Mont. 526
• Parties: McENANEY v. CITY OF BUTTE.
• Court: Montana Supreme Court

117 P. 893

43 Mont. 526

McENANEY v. CITY OF BUTTE.

Supreme Court of Montana

October 5, 1911

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Margaret McEnaney against the City of Butte. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

H Lowndes Maury, John A. Smith, Edwin M. Lamb, John R. Boarman and N. A. Rotering, for appellant.

Canning & Keating, for respondent.

BRANTLY C.J.

Action for damages for a personal injury which it is alleged the plaintiff suffered by reason of a fall upon a sidewalk on one of the streets of defendant, at a point thereon, where there was an accumulation of ice and snow, forming a smooth slippery, and slanting surface. The plaintiff had a verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.

The sufficiency of the complaint was questioned in the court below, both by general demurrer and by objection to the introduction of evidence at the opening of the trial. The action of the court in overruling the contention of defendant's counsel in this behalf is assigned as error. After reciting the capacity of the defendant, its possession and control of the streets and sidewalks, etc., the complaint alleges:

"(3) That the defendant, disregarding its duty in that behalf, did negligently, carelessly, and knowingly allow and permit, for a long time prior to the 6th day of February, 1909, water to overflow from the adjoining and abutting property, over and across the sidewalk on the north side of said East Broadway street, covering a space of more than ten (10) feet; that by reason of the said overflow of said water, over and across said sidewalk as aforesaid, ice and snow accumulated on the said sidewalk at said point, and formed a smooth, slippery, and slanting surface of about ten (10) feet wide.

"(4) That said overflow of said sidewalk by said water was negligently allowed to wrongfully exist and had existed with the full knowledge of the defendant for a period of over one year; that said ice and snow formed by reason of said overflow were a source or danger to pedestrians passing on or over the said sidewalk, and during the long period of time which said ice and snow existed said sidewalk was not protected by any guards, lights, barriers, or signals of danger to notify persons traveling upon said sidewalk of the danger caused thereby; and that during all of said time said sidewalk was traveled by great numbers of people, the said sidewalk and street being one of the principal thoroughfares of the said city of Butte; and the said sidewalk was, at this particular point, used by pedestrians traveling thereon both day and night.

"(5) That at and during all the times herein mentioned the defendant had full knowledge of all the facts and matters herein alleged."

The following paragraphs allege the particulars and character of the injury, and notice to the defendant of the time and place of it, under the requirements of the statute.

Some question is made that the allegations touching the accumulation of ice and snow are insufficient to show that it was such an obstruction as to be a source of danger to persons traveling along the sidewalk; but similar allegations were considered in the case of Townsend v. City of Butte, 41 Mont. 410, 109 P. 969, and were held sufficient.

The contention upon which defendant relies chiefly is that there is no allegation of fact showing that it was guilty of negligence in failing to remove the alleged obstruction within a reasonable time after...