Mullen v. City of Butte

• Citation: 95 P. 597,37 Mont. 183
• Parties: MULLEN v. CITY OF BUTTE.
• Decision Date: 11 May 1908
• Court: United States State Supreme Court of Montana

95 P. 597

37 Mont. 183

MULLEN v. CITY OF BUTTE.

Supreme Court of Montana

May 11, 1908

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by Pat Mullen against the city of Butte. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

Peter Breen, Jesse B. Roote, and A. C. McDaniel, for appellant.

Edwin S. Booth and Wm. E. Carroll, for respondent.

SMITH J. This is an appeal by the plaintiff

This is an appeal by the plaintiff from an order of the district court of Silver Bow county granting the defendant a new trial. The action was begun to recover damages alleged to have been sustained by the plaintiff by reason of an injury to his infant son.

The complaint alleges that the defendant city negligently maintained a sidewalk in a dangerous and unsafe condition "by permitting an excavation to exist on the west side of said sidewalk, *** which excavation abutted upon said sidewalk, and was of a depth of about six feet, *** without any railing or barrier sufficient to protect persons using said street and sidewalk *** from falling or stepping into said excavation." It is then alleged that Thos. Mullen the infant son of plaintiff, while passing along the sidewalk, "stepped or fell into the aforesaid excavation, and struck with great force on his left leg in the region of the knee," receiving permanent injuries. The principal witness on the part of the plaintiff was one Walter Coughlin, who testified that from a house opposite the place of the accident he saw the infant, who was about five years of age, fall, stumble, or jump off the sidewalk at a place where the railing was so defective as to afford no protection to him. The boy was found at the bottom of the excavation upon or near the foot of a flight of steps leading from the sidewalk to the rear door of a saloon building running parallel with the sidewalk at the place in question. Coughlin did not go to the rescue of the boy, but he was picked up by another witness who was attracted to the spot by his crying. The space between the sidewalk and the saloon building was littered with broken bottles, and the boy's leg was found to be badly cut and lacerated, and was bleeding profusely. Blood was found on several broken bottles, and on the ground for some few feet from the place where he was discovered, in the direction of a spot directly underneath a point in the sidewalk, where the railing was partially or wholly absent. One witness testified that there was a piece of broken bottle on the lower step near where the boy was found. On the part of the defendant it was shown that the boys of the neighborhood, including the Mullen boy, were in the habit of playing about these steps, and sliding down a railing on the side thereof from the sidewalk to the space below where the broken bottles were scattered. Plaintiff had a verdict and judgment for $6,500, which were afterwards vacated by the court on defendant's motion. One ground of the motion was insufficiency of the evidence to justify the verdict. In its order granting a new trial the district court incorporated its reasons for making the same. The entire order is found in the record, and both parties request that we examine and consider it.

Acting upon that request, we quote the order: "Plaintiff's case depends upon proof that his infant son fell from the elevated sidewalk where rails were absent, and upon, and was cut by, a mass of broken bottles upon the ground below. The only evidence that the accident so happened was the testimony of one Walter Coughlin, who claims to have been sitting some 30 feet away at the time, and whose testimony is to the effect that the infant staggered or slipped, or stumbled or tripped and fell or jumped off the sidewalk at that time and place. If the infant jumped off, of course, the defendant is not liable. And for this uncertainty the plaintiff's case fails. Neither Coughlin's appearance nor manner while testifying commended him to credibility, but otherwise; and he was so discredited on material matters by his testimony at an earlier trial wherein the infant himself sued the city for damages for his injuries that had the court the right to comment to the jury upon witnesses and testimony, as have the federal courts, it would have felt constrained to advise the jury that Coughlin was unworthy of belief. To cite some few of the facts wherein Coughlin's contradictions appear, at the infant's trial he testified that on the day of the accident he was employed at the Berkley mine day shift, and had come home from work, and was sitting on the porch when he saw the boy go off the sidewalk. At this trial he testified he was then employed at said mine on night shift, and was sitting on the porch waiting to go to work when he saw the boy fall or jump off the walk. There was evidence by the mine owner's bookkeeper that the Berkley mine was not being worked at that time. At the earlier trial Coughlin testified...