Olson v. City of Butte
| Decision Date | 26 December 1929 |
| Docket Number | 6517. |
| Citation | 283 P. 222,86 Mont. 240 |
| Parties | OLSON v. CITY OF BUTTE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Action by Mary C. Olson against the City of Butte. Judgment for plaintiff, new trial was denied, and defendant appeals. Affirmed.
P. E Geagan and George W. Howard, both of Butte, for appellant.
N. A Rotering, of Butte, for respondent.
This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff by falling into a hole in the sidewalk of one of the streets of the defendant.
The complaint alleges that during the year 1924 and for several years prior thereto, Magill-Nevin Plumbing & Heating Company had, under and by permission of defendant, maintained, in connection with its business, an opening, passageway, and hole in and under the public sidewalk on North Main street; that the hole when not in use was usually covered with iron doors, but when used the doors were open, making it dangerous and likely for people to fall through the open hole into the basement; that, although it was the duty of defendant to keep the sidewalk in front of and over the basement used by the establishment of the plumbing company in a reasonably safe condition for travel by the public, and while defendant and its officers had notice of, or in the exercise of reasonable care would have had notice of, the defective and unsafe condition of the sidewalk, defendant and its officers failed and neglected to put and maintain the sidewalk in a reasonably safe condition for travel by the public; that the hole was dangerous, in that at irregular times during the day the plumbing company would use it and would raise and open the doors, leaving the hole in such condition that any person stepping into it would be thrown or hurled into the basement beneath the sidewalk; that, during all of the period mentioned, defendant permitted the plumbing company to make use of the sidewalk and licensed the same by exacting and receiving an encroachment tax and rental, which was exacted and collected on account of the doors as an encroachment on the sidewalk. It is further alleged that on the 5th day of May, 1924, plaintiff, believing that the sidewalk was safe and unobstructed, was traveling upon and over the same at and in front of the business house of the plumbing company and was using due and ordinary care for her own safety, and, without any notice that the doors over the hole in the sidewalk had been opened and raised, she stepped into the hole and passageway and was thrown into the basement, sustaining the injuries complained of. the answer of defendant admits its corporate existence, that North Main street is a public street in the city of Butte, and denies all other allegations of the complaint.
Upon the trial of the cause, defendant's motion for a directed verdict was denied, and there was verdict and judgment for plaintiff. Defendant's motion for a new trial was denied, and it appeals from the judgment.
The various assignments of error present three questions: First, does the testimony affirmatively show that plaintiff was guilty of contributory negligence; second, did plaintiff fail to establish the allegations of her complaint that the hole in the sidewalk, when the iron doors were open, was not protected by a guard of any kind placed in the vicinity, or any warning notice or signal to warn pedestrians of the danger; and, third, did the court err in giving to the jury its instruction 7A?
1. Counsel for plaintiff insists that, since defendant did not plead contributory negligence, it is not in any position to urge the question. While the rule is settled by repeated decisions of this court that, in order to be effective as a defense, contributory negligence must be pleaded with the same particularity as is required in charging negligence ( Burns v. Eminger, 84 Mont. 397, 276 P. 437; Daniels v. Granite Bi-Metallic Co., 56 Mont. 284, 184 P. 836; Freischeimer v. Missoula Creamery Co., 64 Mont. 443, 210 P. 329; 1 Thompson on Negligence, § 366), the rule is equally well established that, when "plaintiff's own case presents evidence which, unexplained, makes out prima facie contributory negligence upon his part, there must be further evidence exculpating him or he cannot recover." Grant v. Chicago, Mil. & St. Paul Ry. Co., 78 Mont. 97, 252 P. 382, 385; Holland v. Pence Automobile Co., 72 Mont. 500, 234 P. 284; Haney v. Mutual Creamery Co., 67 Mont. 278, 215 P. 656; Puckett v. Sherman & Reed, 62 Mont. 395, 205 P. 250. In other words, in addition to proof of negligence and resulting injury, plaintiff must bear the burden of showing that the particular negligence charged was the proximate cause of the injury. Howard v. Flathead Tel. Co., 49 Mont. 197, 141 P. 153; Therriault v. England, 43 Mont. 376, 116 P. 581; Monson v. La France Copper Co., 39 Mont. 50, 101 P. 243, 133 Am. St. Rep. 549.
Does plaintiff's testimony affirmatively show contributory negligence on her part? On direct examination she testified: That she was going south on North Main street; that, as she approached the place where the hole was in the sidewalk, three ladies were standing near talking, just north of the iron doors; that the ladies were parting as she approached and she was trying to get out of the way of one of them who was going north; that she bumped against the gate and fell into the hole.
Upon cross-examination she said:
"* * * And I didn't see the gate until I- she went right in front of me. She went just the way I followed her through; I followed her right straight the way she was going. She did not go into the hole; went to one side of the hole, east of the hole, but my foot bumped against the gate and the gate went right in with me, and fell down. * * * The south gate did not fall. Before that I could only see a little portion of the gate to the west....
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