Pullen v. City of Butte
| Decision Date | 25 January 1909 |
| Parties | PULLEN v. CITY OF BUTTE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Action by Henrietta Pullen against the City of Butte. From a judgment for plaintiff, and from an order refusing a new trial, defendant appeals. Reversed and remanded for new trial.
E. S Booth and W. E. Carroll, for appellant.
Lewis A. Smith, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by the plaintiff. The only allegation in the complaint which seeks to charge the defendant city with negligence is the following: "That the said defendant *** willfully, negligently, carelessly, and wrongfully caused the public sidewalk on the west side of Idaho street, between Galena and Mercury streets, *** to be placed in, and willfully, carelessly, wrongfully, knowingly, and negligently permitted the same to remain in, an unsafe, dangerous, and defective condition." At the close of plaintiff's case, the defendant moved for a nonsuit, specifying, among other grounds, that the complaint does not state facts sufficient to constitute a cause of action. The motion was denied. The plaintiff had judgment, and, from the judgment and an order denying it a new trial, the defendant appeals.
It will be necessary to notice but one contention made by the appellant. It is said that the complaint does not allege any facts showing, or tending to show, negligence on the part of the city. The allegation of the complaint is quoted above. It will be observed that it is not anywhere stated in what respect the sidewalk was unsafe, dangerous, or defective. Respondent, however, answers that "negligence is an ultimate fact, and not a conclusion of law, and a general allegation of negligence is sufficient"; and, again "a general allegation of negligence in the particular act complained of, resulting in damages, is good, at least in the absence of a special demurrer." With these declarations we do not find any fault whatever. They simply do not reach the question we are considering. What do they mean? In Smith v. Buttner, 90 Cal. 95, 27 P. 29, the court, in considering the question now before us, said "It is well settled that negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done without stating the particular omission which rendered the act negligent." In other words, if the doing of certain acts, under certain circumstances, constitutes negligence, it is sufficient after specifying the acts to say that they were negligently done; or, if the failure to do certain acts constitutes negligence, then it is sufficient, after specifying the acts, to say that the defendant negligently failed to do them. With few exceptions, this is the full extent to which the authorities go, and, indeed, most of the authorities cited by counsel for respondent recognize the rule we have stated. For instance, King v. Oregon Short Line R. Co., 6 Idaho, 306, 55 P. 665, 59 L. R. A. 209, is cited, and our attention is directed to the note in the L. R. A. report. The note reviews the authorities at great length, and in conclusion the author of the note says: "While the above note is a long one, a statement of the general rule that it is sufficient in an action for negligence to state the act by which the injury was caused, and that it was negligently done, is nearly a complete summary." The rule is stated in 1 Abbott's Trial Brief, § 395, as follows: In 6 Thompson on Negligence, § 7447, the author says: ...
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