Murray v. City of Butte
| Citation | 151 P. 1051,51 Mont. 258 |
| Decision Date | 06 October 1915 |
| Docket Number | 3558. |
| Parties | MURRAY v. CITY OF BUTTE. |
| Court | Montana Supreme Court |
On Motion for Rehearing, November 1, 1915.
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by Mrs. Frank Murray against the City of Butte. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
W. F Davis and N. A. Rotering, both of Butte, for appellant.
William Meyer, of Butte, for respondent.
Action for personal injuries. The complaint was filed May 21, 1913. It recites the capacity of the defendant, its possession control, and supervision of the streets, sidewalks, etc., of the city, and alleges:
"That the defendant * * * did negligently, carelessly, and knowingly allow and permit on the 25th day of December, 1912, and for a long time immediately prior to the 25th day of December, 1912, to wit, for a period of five days or more, snow and ice to accumulate and remain to a depth of several inches on and across the sidewalk on the west side of North Idaho street in front of and adjacent to the northern part of the lot upon which the dwelling house numbered 123 and 125 North Idaho street is located; that said snow and ice covered a space of more than 15 feet along the said sidewalk north and south; that said snow and ice thereon accumulated and remained, formed a rough, rounded, ridged, uneven, slippery, and slant surface extending the width of the said sidewalk and along the said sidewalk for more than 15 feet, and which was a source of danger to pedestrians passing along said sidewalk; that during all of the time that said ice and snow was allowed to exist thereon said sidewalk was not protected by any guards, lights, barriers, or signals of danger to notify persons traveling along said sidewalk of the danger caused thereby; that during all of said time the said sidewalk was traveled by a great number of persons, the said sidewalk being one of the principal thoroughfares of the city of Butte, and * * * was at this particular point used by pedestrians traveling thereon both day and night; that at all times herein mentioned the defendant had full knowledge of all the facts herein alleged; that on or about the said 25th day of December, 1912, at about the hour of 2 a. m., the plaintiff was traveling on foot and in a careful manner along the west side of the said street and on the said sidewalk hereinbefore mentioned, and at the said point immediately east of the northern part of said lot upon which is located the dwelling house numbered 123 and 125 North Idaho street, when, owing to the said rough, ridged, rounded, uneven, slanting, and slippery ice and snow carelessly and negligently permitted and allowed to accumulate and remain in said dangerous condition on the said sidewalk at the said point on the 25th day of December, 1912, and for more than five days prior thereto, this plaintiff slipped and fell in such a manner that as a result thereof her right arm was broken and fractured, and her right hip, back, and head were injured."
Succeeding paragraphs set forth the character and particulars of the damage claimed, and notice to the defendant under the requirements of the statute.
To this complaint a demurrer was interposed attacking the complaint generally, and also asserting it to be indefinite, uncertain, and ambiguous, because:
"It does not state whether the plaintiff fell by reason of snow on the walk, or by reason of snow on the ice, or by reason of the slipperiness of the ice, or by reason of the roughness of the ice, or by reason of the ice being ridged, or by reason of the ice being rounded, or by reason of the ice being uneven, or by reason of the ice being slanting."
The demurrer being overruled, the defendant answered, admitting the corporate character of the city of Butte, denying all the other allegations of the complaint, and pleading: "That on the 27th day of January, 1913, the plaintiff commenced an action No. A-4809 against the defendant in the district court of the Second judicial district of the state of Montana in and for the county of Silver Bow, in which said action the said plaintiff sued the said defendant upon the same and identical alleged and pretended cause of action that is sued upon herein; that in said action the said plaintiff demanded the same relief as is demanded against this defendant in the above-entitled action; * * * that in said action No. A-4809 a judgment in the sum of $8 in favor of the defendant and against the plaintiff was duly given, made, rendered, and entered, and the same has not been paid or satisfied; that the said action No. A-4809 is now pending in the district court of the Second judicial district of the state of Montana in and for the county of Silver Bow."
The plaintiff replied, denying that the judgment pleaded in the answer had not been satisfied, and alleged that it had been fully paid and duly satisfied of record.
Trial was to a jury, who returned a verdict for plaintiff in the sum of $1,000. Judgment was entered accordingly, and a motion for new trial was denied; hence these appeals.
The questions presented and argued in the briefs relate to: (1) The sufficiency of the complaint; (2) the effect of the plea of former action pending; (3) the rejection of an offer of proof; (4) the refusal of certain offered instructions; (5) the giving of a certain instruction; and (6) the sufficiency of the evidence to justify the verdict. These we consider briefly as follows:
1. We think the complaint definite enough to apprise the defendant of the nature, scope, and limitations of the cause of action sought to be presented. That it states a cause of action is no longer open to doubt. Townsend v. City of Butte, 41 Mont. 410, 109 P. 969; Storm v. City of Butte, 35 Mont. 385, 89 P. 726.
2. The plea of another action pending was a plea in abatement. Peterson v. City of Butte, 44 Mont. 129, 120 P. 231. Its essential was an unsatisfied judgment which defendant averred and the plaintiff denied. The defendant therefore was not entitled to prevail upon the pleadings, nor upon the evidence, because the duty of maintaining such a plea is on the pleader (Croft v. Bain, 49 Mont. 485, 143 P. 960; 1 Corpus Juris, 107, § 165, et cit.), and the record entirely fails to show an unsatisfied judgment in the other action.
3. The offer of proof which the trial court rejected was to the effect that up to December 17, 1912, the sidewalk in question had been kept clear by the occupant of the premises. Its purpose was, in connection with the other proof in the case to show that reasonable care had always been exercised to keep the sidewalk in a reasonably safe condition, and we think the evidence was competent, though its connection with the true subject of inquiry...
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