Stewart v. Standard Pub. Co.

• Decision Date: 09 March 1936
• Docket Number: 7498.
• Parties: STEWART v. STANDARD PUB. CO.
• Court: Montana Supreme Court

55 P.2d 694

102 Mont. 43

STEWART v. STANDARD PUB. CO.

No. 7498.

Supreme Court of Montana

March 9, 1936

Appeal from District Court, Deer Lodge County; T. E. Downey, Judge.

Action by Jessie V. Stewart against the Standard Publishing Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. B C. Knight and William R. Taylor, both of Anaconda, for appellant.

Sid G Stewart, of Anaconda, for respondent.

ANDERSON Justice.

Plaintiff brought this action to recover damages for personal injuries sustained by her when, on September 23, 1934, she fell on a sidewalk as a result of the accumulation of ice and snow thereon in front of the building owned by the defendant in the city of Anaconda.

The plaintiff charged in her complaint that the sidewalk for a long time prior to the date of the accident was in a defective and dangerous condition, in that it was sunken and depressed so that it made portions of it lower than the remainder of the walk, and that these depressions collected pools of water which accumulated froze, and made the sidewalk slippery and dangerous. It was alleged that the sidewalk on which the plaintiff fell at the time of her injury contained these frozen pools of water, and that the ice was covered with a light fall of snow. The defendant answered denying the negligence, and the cause was tried before the court sitting with a jury. The defendant, prior to filing its answer, by demurrer challenged the sufficiency of the complaint for want of substance, and again by objection at the commencement of the reception of testimony upon the same ground.

At the close of plaintiff's case the defendant made a motion for nonsuit, which was denied, and thereafter, without offering any proof, moved for a directed verdict; this motion was likewise denied. Numerous objections were made during the progress of the trial to the reception of evidence. The cause was submitted to the jury, and a verdict for plaintiff was returned in the sum of $1,000. Judgment was entered in accordance with the verdict. The appeal is from the judgment.

Numerous specifications of error seek to review these various rulings. All of them seek to raise the question whether the defendant company, which was the owner of the property abutting the sidewalk on which plaintiff fell, under the facts is liable in damages. The defendant argues that under the decisions of this court there is no liability upon an abutting property owner as a result of injuries sustained on a defective sidewalk in front of the premises. In the case of Headley v. Hammond Building, Inc., 97 Mont. 243, 33 P.2d 574, 576, 93 A.L.R. 794, we quoted with approval what was said in the case of Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809, wherein it was written: "In this state the fee to the street is in the state; the city is but a trustee thereof (City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593); a sidewalk is but a part of the street. Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 36 L.R.A. (N.S.) 666, 21 Ann.Cas. 1372; Mitchell v. Thomas, 91 Mont. 370, 8 P.2d 639. The city has the same control over, and duties with reference to, the sidewalk as it has respecting any other part of the street. 6 McQuillin on Municipal Corporations, 2796. Primarily the city is charged with the duty of keeping its streets, including the sidewalks, in a reasonably safe condition for travel." (Citing cases.) We also declared in the same opinion: "If a city ordinance requires the abutting owner to keep the sidewalk in repair, the city's duty to the public is not affected; it merely makes the abutting owner a joint agent with the city officials for the performance of the city's duties. Nord v. Butte Water Co., supra; Childers v. Deschamps, 87 Mont. 505, 290 P. 261. *** Defendant company, having once repaired the walk, was not therefore bound as a result of that operation to keep it in repair. 43 C.J. 1105; Dixon v. Missouri Pac. R. Co., 104 Kan. 404, 179 P. 548; McCarthy v. Adams, 42 Ohio App. 455, 182 N.E. 324."

Plaintiff concedes that in the ordinary causes of defective sidewalks the abutting owner is not liable, but argues that, since cities and towns have been relieved from all liability for the accumulation of snow and ice on sidewalks under the provisions of chapter 132 of the Laws of 1929, a person injured by falling on an icy sidewalk would have no remedy if the abutting owner were not held liable. Her counsel's argument proceeds upon the theory that under the provisions of section 6, article 3, of the Constitution, reading as follows, "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character," the constitutional right of the plaintiff to have a remedy for her injury cannot be denied.

Some courts under a similar constitutional provision have adopted a view in accordance with the contention of plaintiff, as illustrated by the case of Mattson v. Astoria, 39 Or. 577, 65 P. 1066, 87 Am.St.Rep. 687, which held that although the Legislature had power to change the remedy which existed at the time of the adoption of the Constitution, it was powerless to deny to an injured party who had a remedy under the common law all relief whatever. This court, however, has interpreted this provision of the Constitution somewhat differently. In the case of Shea v. North-Butte Mining Co., 55 Mont. 522, 179 P. 499, 502, it...