Montague v. Hanson

Decision Date23 February 1909
Citation99 P. 1063,38 Mont. 376
CourtMontana Supreme Court

Appeal from District Court, Custer County; C. H. Loud, Judge.

Action by John W. Montague against Charles Hanson. Judgment for plaintiff, and defendant appeals. Affirmed.

Sydney Sanner, for appellant.

Geo. W Farr, for respondent.


Action for damages for a personal injury. At the time the injury occurred plaintiff was of the age of 68 years. He had been engaged in farming and stock raising, and other pursuits requiring manual labor. The defendant is a merchant residing at Fallon, Custer county, where he keeps for sale a general stock of goods, wares, and merchandise, soliciting the patronage of the people residing in that vicinity and the public generally. The main room of his store building is 75 feet in length by 20 feet in width. Underneath is a cellar reached by a cellar or stair way leading down from the storeroom, through an opening in the floor. This opening is covered by a flapdoor when the stairway is not in use. The room is fitted up with conveniences for displaying and selling wares to customers. Two parallel counters extend from the front most of the distance to the rear of the room leaving an aisle or passageway along the middle. In the space beyond the end of the counter on the right to one entering from the front is a stove for heating purposes, around which in cold weather customers gather for warmth. The opening by which the cellar is reached is also in this space, along the side of the room in close proximity to both the stove and the end of the counter. When the stairway is in use, the flap is lifted and thrown back against the right side of the building. On March 31, 1905, plaintiff drove from his home to the store of defendant to purchase goods. On his arrival he entered by the front door. After alleging these facts in substance, the complaint proceeds: "That he (plaintiff) approached the said defendant, who was standing in the center of the said storeroom, and greeted the said defendant and shook hands with him, and, being cold, advanced from the place where he was and from where the said defendant was standing, along the open public passageway in the said storeroom, to and in the immediate vicinity of the said stove for the purpose of being made warm by the heat from the said stove, and while so in the said store building by the permission and invitation of the said defendant for the purpose of transacting business with him, the said defendant had negligently and carelessly left the said cellar doorway open to the said cellar way, which was close to and in the immediate vicinity of the said stove and so close to the said stove that persons would necessarily in proceeding to the said stove or going to the same for the purpose of being made warm, be likely to fall into the said open cellar door. The said defendant negligently and carelessly wholly failed to caution or warn this plaintiff that the said cellar doorway was open or dangerous, and this plaintiff not then knowing of the existence of the said cellar door, or that the same was open, approached the said stove, and, the said cellar door being then by the negligence of the said defendant left open and not in any manner protected, this plaintiff in consequence thereof fell through the said open, unprotected cellar doorway and was violently precipitated and thrown down into the said cellar, a distance of about 10 feet, and thereby greatly injured and bruised upon his head, arms, and body, and had his right shoulder and the muscles and bones thereof broken and injured and his right arm and hand injured and disabled, and in consequence thereof such injuries remain and now are permanent." It is then alleged that the plaintiff has suffered damage by expenses incurred for medical attention, for anguish and pain, for loss of time, and the result of permanent disability in the sum of $3,000. Judgment is demanded for this amount. The answer admits that the plaintiff fell into the cellar way as alleged, but denies that the injuries sustained were serious or resulted in permanent disability. It is alleged that the fall was the result of plaintiff's own want of care and circumspection, and as a separate defense defendant charges contributory negligence. Plaintiff had verdict and judgment. Defendant has appealed from the judgment and an order denying him a new trial. The integrity of the judgment is assailed on several grounds.

1. The first contention made is that the complaint does not state a cause of action, in that it discloses the fact that the injury was caused by plaintiff's own act, and it is nowhere alleged that he was at the time exercising reasonable care and circumspection, or that he was himself free from fault. Counsel invoke with confidence the rule laid down by this court in Kennon v. Gilmer, 4 Mont. 433, 2 P. 21, that, if the complaint shows that the plaintiff's own act was the proximate cause of his injury or proximately contributed thereto, it will be held insufficient unless it goes further and by appropriate allegations shows that the plaintiff was at the time exercising ordinary care and circumspection. The rule declared in this case has been repeatedly recognized by this court. Nelson v. City of Helena, 16 Mont. 21, 39 P. 905; Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871; Nord v. Boston & Montana Con. C. & S. Min. Co., 30 Mont. 48, 75 P. 681; Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 P. 940. It is based upon the obviously just principle that one who has brought injury upon himself by his own act cannot lay responsibility for it upon another unless he can allege and show that the act causing the injury was impelled by the apparent necessities of a perilous condition brought about by the negligence of such other person. It does not apply to cases where the plaintiff has been injured upon going into a place where he has a right to go, by some hidden or unknown cause, of the existence of which it is the duty of the person having control of the place to give him warning.

The facts alleged show that the plaintiff was not a mere licensee upon the defendant's premises by his silent acquiescence. If this were so, defendant would not have owed him any duty other than to refrain from doing him willful or wanton injury after being informed of his presence. Driscoll v. Clark, 32 Mont. 172, 80 P. 1, 373; Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 P. 831. He was there to purchase goods in response to an invitation, it matters not whether express or implied, extended to all persons in the vicinity and to the public generally, to go there for that purpose. To all such persons the defendant owed the duty to use ordinary care to have the premises safe, as well as to warn them of any hidden or lurking danger thereon. On this subject Mr. Thompson, in his work on Negligence (volume 1, § 968), says: "On the contrary, the owner or occupier of real property is under the duty of exercising reasonable or ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied; and if, through a neglect of this duty, they are, without negligence or fault of their own, injured by reason of any negligent defect therein, he must pay damages. The person so invited to come upon the premises of the other is entitled to assume that they will be in a reasonably safe condition. He must not expose them to hidden dangers of which they are not aware, but of which he is, or may be, by the exercise of reasonable care, aware, especially if the danger is in the nature of a trap. To bring a case within this rule, it is not at all necessary that the person invited to come upon the premises should have had any business that would or would not be of any benefit to the owner or occupier." Again the same author states the rule thus: "The principle is that there is an implied invitation to members of the public seeking to do business with the owner or occupier of such building or grounds, such as he invites the public to do...

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