Nagle v. City of Billings

• Decision Date: 18 October 1926
• Docket Number: No. 5955.,5955.
• Citation: 77 Mont. 205
• Parties: NAGLE v. CITY OF BILLINGS.
• Court: Montana Supreme Court

77 Mont. 205

NAGLE

v.CITY OF BILLINGS.

No. 5955.

Supreme Court of Montana.

Oct. 18, 1926.

Appeal from District Court, Yellowstone County; O. F. Goddard, Judge.

Action for personal injuries, brought by Theresa Nagle against the City of Billings. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. J. Lamb, of Billings, for appellant.

H. C. Crippen and F. G. Huntington, both of Billings, for respondent.

STARK, J.

The complaint in this action alleges in substance that on the 5th day of April, 1924, at about 11 o'clock in the evening, the plaintiff was walking in an easterly direction along the north side of First Avenue North, in the city of Billings, and that as she was about to cross Thirty-Second Street North and was in the act of stepping from the sidewalk onto a grate covering over the gutter along the west side of Thirty-Second Street North, her foot became wedged in an aperture that then and there existed between the end of strap iron forming part of the gutter grate covering and the street curbing, which caused her to be thrown violently forward onto the pavement in such manner that she sustained a broken arm and other injuries complained of. The negligence charged was one of omission, namely, that the defendant “failed and neglected to cause the ends of * * * said strap irons to be flattened out and made to lie flat on” the concrete curbing, which ends “had been bent by use so that the ends of the strap iron resting on the curbing * * * were bent upward, leaving a space or aperture of an inch and a half to two inches in such manner as to constitute a dangerous obstruction.”

The defendant by answer denied the act of negligence charged, and the case was tried before a jury on December 4, 1925, and resulted in a verdict and judgment in favor of the plaintiff, from which the defendant has appealed.

Counsel for defendant has made 9 specifications of error in his brief, the first 8 of which relate to the action of the court in giving certain instructions to the jury over his objections, and in refusing to give other instructions requested by him on the part of the defendant.

We have given careful attention to the specifications covering the rulings of the court with reference to these given and offered instructions, and are of opinion that with the exception of those covered by specifications Nos. V and VI they are without merit; and we shall therefore confine ourselves to their consideration. In passing, however, we suggest to counsel with reference to the first specification of error, which questions the definition of “actionable negligence” given by the court, that in formulating instructions they should, so far as possible, employ terms and expressions which have been approved by this court as technically correct.

The objections raised by specifications of error V and VI relate to the court's instructions Nos. 7 and 9. In its instruction No. 7 the court advised the jury as follows:

“The court further instructs the jury that a city is bound, as an active and continuous duty, by adequate inspection to ascertain and appraise and provide against dangers due to defects in sidewalks and approaches thereto and to make repairs or install such protections as will furnish the traveler a reasonably safe walk” etc.

Instruction No. 9 was as follows:

“The court instructs the jury that a traveler on a public street has a right to presume that it is in an ordinarily safe condition, because the law enjoins upon the authorities of the municipality the duty to exercise ordinary care to make and keep the streets in a reasonably safe condition for public travel. The duty of the municipal authorities in this respect requires of them the duty to make adequate inspection of the streets and sidewalks within their supervision and control to ascertain if they are in reasonably safe condition for public travel and to repair them if they are not in such condition. Failure of the authorities of a municipality to discharge their duty to travelers on the streets and sidewalks of the municipality constitutes actionable negligence if a traveler be injured through or because of the existence of such defect.”

Both of these instructions were erroneous. Among the accepted definitions of the word “adequate” are: “Fully sufficient”; “equal to what is required”; “lawfully and reasonably sufficient.” Webster's New International Dictionary; Standard Dictionary. By rewriting instruction No. 7, using the definitions of the word “adequate” in place of the word itself, we have this result:

“A city is bound, as an active and continuous duty, by an inspection which purpose to ascertain and appraise and provide against dangers due to defects in sidewalks and approaches thereto and to make repairs or install such protections as will furnish the traveler a reasonable safe walk,” etc.

Using either one of...