Nelson v. City of Helena

• Decision Date: 08 April 1895
• Citation: 39 P. 905,16 Mont. 21
• Parties: NELSON v. CITY OF HELENA.
• Court: Montana Supreme Court

39 P. 905

16 Mont. 21

NELSON v. CITY OF HELENA.

Supreme Court of Montana

April 8, 1895

Appeal from district court, Lewis and Clarke county; H. R. BUCK Judge.

Action by Harold H. Nelson against the city of Helena. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action brought by the plaintiff to recover damages for personal injuries sustained by reason of his falling upon one of the sidewalks of defendant, it being alleged that the injury occurred by reason of the defendant's negligence in allowing ice to accumulate upon said sidewalk. Upon a trial to a jury a verdict was rendered, and judgment entered in favor of defendant. The plaintiff appeals from the judgment, and from an order denying a new trial. Among other instructions, the court gave the following: "The injury sustained by plaintiff is admitted, but before he can recover he must prove that it resulted from negligence on the part of defendant, and without negligence on his own part directly and immediately contributing to the accident." The giving of this instruction is assigned as error.

T. E Crutcher, for appellant.

Stephen Carpenter, City Atty., for respondent.

DE WITT, J.

(after stating the facts). It is the law of this jurisdiction that in actions for damages for personal injuries, contributory negligence is a matter of defense, and that the absence of contributory negligence is not required to be proved by plaintiff, as part of his case. There is some diversity among courts of last resort as to whether contributory negligence is a matter of defense, or whether plaintiff should allege and prove himself to be free from such contributory negligence. But that question has been long at rest in this court. It is the doctrine of this jurisdiction that contributory negligence is a matter of defense, and that plaintiff need not allege or prove its absence. Higley v Gilmer, 3 Mont. 97. Our examination of the decisions and the text writers leads us to the opinion, with deference to the distinguished courts that have held the contrary doctrine, that this court, in this respect, is with the majority of opinion and adjudication. Mr. Beach, in his work on Contributory Negligence, says (section 157) that it is a rule that contributory negligence is a matter of defense in the states of Alabama, California, Georgia, Kentucky, Kansas Maryland, Minnesota, Missouri, New Hampshire, New Jersey Nebraska, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Wisconsin, West Virginia, Vermont, and Colorado, and in England and the United States supreme court. To this list, Shearman and Redfield add Arizona, Oregon, and Dakota. As above noticed, Montana belongs in the same category. See, also, the collection of cases holding the two different rules, as found in 2 Thomp. Trials, §...