Meisner v. City of Dillon

• Decision Date: 09 November 1903
• Citation: 74 P. 130,29 Mont. 116
• Parties: MEISNER v. CITY OF DILLON.
• Court: Montana Supreme Court

74 P. 130

29 Mont. 116

MEISNER v. CITY OF DILLON.

Supreme Court of Montana

November 9, 1903

Appeal from District Court, Beaverhead County; M. H. Parker, Judge.

Action by Herman F. Meisner against the city of Dillon. From a judgment for plaintiff and from an order denying a motion for a new trial, defendant appeals. Affirmed.

This action was brought by Herman F. Meisner against the city of Dillon to recover damages for personal injuries alleged to have been caused by the negligence of the defendant city. The complaint alleges that the city of Dillon is a municipal corporation; that during July, 1899, it negligently permitted a certain street crossing to be in an unsafe and dangerous condition; that on July 22, 1899, while the plaintiff was driving along the street over which the particular crossing extended, by reason of the dangerous and defective condition of the crossing he was thrown from his buggy, and received the injuries of which complaint is made. The prayer is for $5,210.50 damages. To this complaint the defendant city filed this answer, omitting formal parts: "Denies each and every allegation in the said complaint contained, save and except such as are contained in the first, sixth, and eighth paragraphs thereof." The first paragraph of the complaint referred to alleges the corporate existence of the city of Dillon, the sixth alleges the presentation of plaintiff's claim to the city, and the eighth alleges its rejection by the city council before the commencement of this action. The cause was tried to a jury, which returned a verdict for plaintiff for $550. The appeals are from the judgment entered for the amount of the verdict and costs and from the order denying defendant's motion for a new trial. Heretofore, on motion, the appeal from the judgment was dismissed.

Jno. G Willis and Edwin Norris, for appellant.

Pemberton & Maury, for respondent.

HOLLOWAY J. (after stating the facts).

1. At the instance of the plaintiff the court gave instruction No 8, as follows: "You are instructed that when, without any fault of the driver, a horse becomes uncontrollable or runs away, it is regarded as an accidental occurrence, for which the driver is not responsible and when two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither party is responsible, the city is liable, provided the injury would not have been sustained but for such defect;" and refused instructions numbered 1 and 2 asked by the defendant as follows: "No. 1. The city is required to exercise reasonable skill and diligence in making and keeping the streets and crossings safe and convenient for the ordinary and customary use of and travel thereon, but it is not required to keep the streets in such condition that users thereof may with safety drive a horse thereon at an unusual or furious rate of speed, or may drive an unmanageable horse thereon; nor is the city required to keep the streets in such condition that damages may not be caused by a horse which has escaped from the control of its driver." "No. 2. If you believe from the evidence that the horse driven by the plaintiff, by reason of fright or viciousness, became uncontrollable, so that the driver thereof could not stop him, or direct his course, or gain control over his movements, and in this condition came upon the alleged defective part of the street in question, and on account of which the plaintiff claims the accident was caused, then you are instructed that the city is not liable for any injury there was, and you should find for the defendant, unless you believe that such injury would have occurred without such horse becoming unmanageable."

The evidence tends to show that on the evening of July 22, 1899 the plaintiff and his daughter were driving on the streets of Dillon in a buggy to which was attached one horse; that without any fault on the part of the plaintiff the horse became frightened and unmanageable and ran away; that at the intersection of Montana and Virginia streets the city had lately constructed a heavy plank walk across Montana street; that this crossing projected from four to seven inches above the level of the street; that the city had caused grading to be done on each side of this crossing near the center of the street for a portion of the distance along the crossing, so as to enable vehicles to pass over it (the extent to which this grading had been done is somewhat in doubt. Witnesses for plaintiff testified that it was done only for a distance sufficient to enable one wagon to cross at a time, while witnesses for defendant testified that it was done for from twenty to twenty-eight feet. Admittedly it was done for less than one-third of the width of the street and length of the crossing); that when plaintiff's buggy passed over this crossing two of the wheels struck the walk where no grading had been done, and the force of the contact threw the plaintiff to the ground, inflicting serious and probably permanent injuries. The contention of the defendant is that the cause of plaintiff's injury was the running away of his horse, and instructions Nos. 1 and 2, above, are apparently framed upon the theory that the negligence of the city in permitting the crossing to be unsafe must have been the sole cause of plaintiff's injuries. If such injuries resulted from the defective street crossing, and from any other accidental, intervening, or proximate cause, the city would not be liable. While this theory of the law has the support of very...