Robinson v. Mills
| Decision Date | 07 June 1901 |
| Citation | 65 P. 114,25 Mont. 391 |
| Parties | ROBINSON v. MILLS. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; S. H. McIntire Judge.
Action by Lou M. Robinson against James H. Mills, as receiver of the Helena Consolidated Water Company. From a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, the defendant appeals. Affirmed.
Action for damages caused by a defect in a street in the city of Helena. The plaintiff alleges in her complaint that the Helena Consolidated Water Company, under authority of an ordinance of the city of Helena approved January 15, 1890 granting to the company a franchise for that purpose, was engaged in supplying water to the city and its inhabitants until March 16, 1896; that under its said franchise it had the right to lay pipes and mains through all the streets of the city, and for this purpose to make excavations in the streets, provided that it was the duty of the company, under the law and the ordinance, to restore the streets in every instance to the same safe condition in which they were before any such excavations were made; that up to March 16, 1897 the company had maintained a pipe or main under and through Eleventh avenue, one of the streets of the city; that a short time prior to that date it had made an excavation in that street near its intersection with Raleigh street, which it had thereafter only partially filled; that this excavation was negligently allowed to remain unfilled, so that the street was not again put in as good condition as when the excavation was made; that on March 16, 1897, in a suit pending in the United States circuit court for the district of Montana, the defendant was by the court appointed receiver for the corporation, and authorized to take possession of all the property and effects belonging to it, and to continue its business; that the defendant entered upon the discharge of his duties under the order, and continued the business as directed therein; that, notwithstanding his duty in that behalf, the defendant neglected to fill the excavation aforesaid until May 24, 1897, though the unsafe condition of it was well known to him, or should have been well known to him if he had exercised reasonable diligence to ascertain its condition; that on the date last mentioned the defendant through his agents and servants, cast dirt and soil into the excavation, so that it appeared to be filled up, but that the work was so negligently done that a hole or space was left underneath the surface of the street, by means of which the street was rendered dangerous; that on the evening of May 24, 1897, the plaintiff, without knowledge of the unsafe condition of the street, and without negligence on her part, drove her carriage over the same; that the horse which she was driving broke through the surface of the street over the hole or space, and thereupon became frightened and ran; that the carriage in which the plaintiff was riding was drawn against a fire plug near by, overturned, and demolished, and by reason thereof plaintiff was thrown violently to the ground, cut about the head and face, and seriously hurt internally; that from these injuries she continues to suffer, and be sick and sore and lame; and that by reason thereof, and the destruction of her carriage, she has suffered damages in the sum of $2,000. The defendant, admitting that the Helena Consolidated Water Company made the excavation in question in the conduct of its business, denies any negligence or omission of duty in the premises by the company by reason of which the street was rendered or left defective or dangerous. He denies any negligence or omission on his part after he took charge of the property and business of the company, and alleges that, if any defect in the street existed by reason of any default of duty on the part of the company, the same was not known to him, and could not, by reasonable diligence on his part, have become known to him, so that he was burdened with any duty to the plaintiff because of his continuance of the business of the company under his trust. He also alleges contributory negligence on the part of the plaintiff. This appeal is from a judgment in favor of the plaintiff for $1,250 and from an order denying the defendant's motion for a new trial.
Wm. Wallace, Jr., and Clayberg & Gunn, for appellant.
T. J. Walsh, for respondent.
BRANTLY C.J. (after stating the facts).
1. When plaintiff had concluded the introduction of evidence, counsel for the defendant moved the court to direct a verdict in his favor on the ground that the complaint did not state a cause of action against him, for the reasons that the duty, if any to remedy any defect in the street occasioned by the excavation therein by the water company, was a duty owing to the city of Helena, and to no one else, and that there was no duty resting upon the defendant to remedy such defect. The court overruled the motion, and defendant assigns error. Subsection 73 of section 4800 of the Political Code provides: "The city or town council has power: To permit the use of streets and alleys of the city or town for the purpose of laying down gas, water and other mains, but no excavation must be made for such purpose without the permission of the council, and the streets and alleys must be placed in as good condition by the person making the excavation as they were before the excavation was made, and the mains laid down, and in default thereof the council may order the same to be done at the expense of such person." The argument of counsel upon the first ground of motion is that under the statutes of Montana governing the organization of cities, and from which they derive their powers, exclusive jurisdiction over and the right to control the streets and alleys rests with the city; that the council may, under the provision quoted, grant permission to a water company to make such excavations in the street as the nature of its business requires, but that the primary duty to the public to properly fill such excavations and restore the streets to their former condition is cast in each instance upon the city, and not upon the corporation acting under such permission or license. In other words, however much such a corporation may be guilty of negligence and disregard of its obligation to the city under the license, it is not liable to the passenger upon the street for any injury resulting from such neglect of duty. If, therefore, a person injured has any recourse, it is against the city, which alone is liable, and the corporation which has caused the injury suffers no other penalty or liability than that of having the street restored at its expense. As conclusive of this contention, counsel cite among other cases: City of Rochester v. Campbell, 123 N.Y. 420, 25 N.E. 937; Taylor v. Railroad Co., 45 Mich. 74, 7 N.W. 728, 40 Am. Rep. 457; City of Keokuk v. Independent Dist. of Keokuk (Iowa) 5 N.W. 503; City of Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Hill v. City of Fond du Lac, 56 Wis. 242, 14 N.W. 25; Kirby v. Association, 14 Gray, 249, 74 Am. Dec. 682; City of St. Louis v. Connecticut Mut. Life Ins. Co., 107 Mo. 92, 17 S.W. 637. In City of Rochester v. Campbell it appears that the charter of the city imposed upon the owners of lots the duty of keeping in repair the adjoining sidewalks, and to clear away therefrom all snow and ice or other obstructions. In case of default on part of the owner, the city authorities, after notice to him, could have the repairs or other work done at his expense. The sidewalk adjoining defendant's premises had fallen into disrepair, and by reason of this condition a passenger was injured. The city, having been compelled to pay a judgment for damages, sought to fix liability upon the defendant for the amount so paid. It was held that the city could not recover. This conclusion was based upon the theory that the primary obligation to keep the streets in order rested with the city; that the obligation cast upon the abutting lot owner was subservient to that resting upon the city, to be performed or neglected, at the pleasure of the city authorities; and that it was inconsistent with this power of exclusive control in the city and its resultant primary duty to suppose a primary duty cast upon the defendant also. The principle of this case is supported by the other cases cited, and by the current of authority, but it has no application here. Under the common law no duty rested upon the lot owner to keep the adjoining streets or sidewalks in repair. In every case where this duty is cast upon the owner it is by virtue of a provision of the charter or an ordinance of the city under its charter powers, and the liability arising from neglect is to the city, and not to the public. It is equally as well settled by the current of authority that one who creates or maintains a nuisance in a street is liable to a passenger who, being himself without negligence, is injured thereby. 2 Dill. Mun. Corp. § 1032; City of Rochester v. Campbell, and other cases cited; Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N.Y. 550; Am. & Eng. Enc. Law (2d Ed.) 433; Webster v. City of Beaver Dam (C. C.) 84 F. 280; Toutloff v. City of Green Bay, 91 Wis. 490, 65 N.W. 168. This principle was recognized by this court in Cannon v. Lewis, 18 Mont. 402, 45 P. 572, where it was held that the defendant was liable for injuries to a passenger who fell into a cellar way of the defendant, left open in the sidewalk upon a street in the city of Butte. A clear distinction exists as to the relations of the parties to the public in the two cases, and their resultant duties are based upon wholly different considerations. An unauthorized excavation or other obstruction in a street...
To continue reading
Request your trial