Storm v. City of Butte

• Decision Date: 18 April 1907
• Citation: 89 P. 726,35 Mont. 385
• Parties: STORM v. CITY OF BUTTE.
• Court: Montana Supreme Court

89 P. 726

35 Mont. 385

STORM v. CITY OF BUTTE.

Supreme Court of Montana

April 18, 1907

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by Martha Storm against the city of Butte. From a judgment for plaintiff, defendant appeals. Remanded, with directions to grant defendant a new trial, unless respondent consents to a modification of the judgment, in which case the judgment as modified, will be affirmed.

This is an action for damages for personal injuries alleged to have been received by the plaintiff, Martha Storm. The complaint among other things, charges: "That on or about the 27th day of December, 1901, and for some time prior thereto congealed snow and ice to the depth of several inches were by the defendant negligently permitted to accumulate upon and across the sidewalk of the west side of Alabama street, at a point between Broadway and Park streets, within said city limits, which snow and ice, by reason of pedestrians passing over it, and other causes, became so uneven and rounded and had such an angle from the level of the sidewalk that a person could not walk over it without danger of falling; and the said sidewalk became and was dangerous to foot passengers, and as plaintiff is informed and believes, so remained for a long time, to wit, more than 10 days prior to said date, to the knowledge of the defendant. And the said dangerous obstruction was negligently suffered by the defendant during a night, on or about said day, to remain open, exposed, and without proper protection, and without any light or signal to indicate danger. That the plaintiff on the night aforesaid was lawfully traveling on the said sidewalk on the said street, and was wholly unaware of danger, and was accidentally, and without fault or negligence on her part, tripped and thrown violently down on the said ice and snow, and slipped and fell thereon, whereby she sustained a severe and complicated fracture of the arm and wrist, and was severely wounded and injured." The answer admits the corporate existence of the city of Butte, and denies every other allegation in the complaint. Counsel for the defendant objected to the introduction of any evidence on the part of the plaintiff on the ground "that the complaint does not state facts sufficient to constitute a cause of action, in that it fails to show that the injury complained of was caused by any failure of duty or negligence upon the part of the defendant city." This objection was overruled. A motion for nonsuit was made and denied. The jury returned a verdict in favor of the plaintiff, and from the judgment entered on the verdict, and from an order denying it a new trial, the defendant appeals.

L. P. Forestell and J. F. Davies, for appellant.

C. P. Drennen, for respondent.

HOLLOWAY J.

1. The first contention of appellant is that the complaint does not state a cause of action; and we may readily agree with counsel that it is necessary for the complaint to show actionable negligence on the part of the city, and to show the causal connection between the negligence alleged and the injury of which complaint is made. It is directly alleged that the city negligently permitted snow and ice to accumulate on the sidewalk at the point where the injury occurred, to the depth of several inches, and that this snow and ice, by reason of persons passing over it, and other causes, became so uneven and rounded, and had such an angle from the level of the sidewalk, that a person could not walk over it without danger of falling, and that this condition was known to the city for a long time prior to the date of plaintiff's injury. It is in effect alleged, though not very specifically, that this accumulation of snow and ice, under the circumstances described, constituted an obstruction which the city negligently permitted to remain there without proper protection, and without any light or signal to indicate danger. We are of the opinion that these allegations are sufficient. It is a general rule that a complaint will be upheld, if the essential facts appear by plain and necessary implication, particularly so when no special demurrer has been interposed. Hargro v. Hodgdon, 89 Cal. 623, 26 P. 1106; 14 Ency. Pl. & Pr. 333, 334. It is further claimed that it does not appear from the complaint just what caused plaintiff's injuries. It is alleged that while plaintiff was passing along this sidewalk, and unaware of danger she was tripped and thrown down, and slipped and fell on said ice and snow, whereby she sustained the injuries complained of. It is also a general rule of pleading that in an action for damages for negligence, it must appear from the complaint, either by direct averment or from the statement of such facts as to raise the presumption, that the injury was the natural and proximate result of defendant's negligence. 14 Ency. Pl. & Pr. 336, and cases cited. It appears to us that the meaning of this complaint is sufficiently clear, and that, at least by necessary implication, it appears that the obstruction on the sidewalk, consisting of accumulated snow and ice in the condition described in the complaint was the cause of plaintiff's injury, and the objection to the introduction of evidence was properly overruled.

2. The next contention is that the evidence is not sufficient to sustain the verdict, and in this connection we may adopt appellant's theory of the law as announced in 2 Dillon on Municipal Corporations, and by the decided cases, that a showing of mere slipperiness of the sidewalk, occasioned by snow and ice, is not sufficient to hold the city liable. 2 Dillon, Mun. Corp. § 1006; Henkes v. Minneapolis, 42 Minn. 530, 44 N.W. 1026; Taylor v. Yonkers, 105 N.Y 202, 11 N.E. 642, 59 Am. Rep. 492. It is to be observed, however, that in stating the rule Dillon uses this language: "The mere slipperiness of a sidewalk occasioned by ice or snow not being accumulated so as to constitute an obstruction is not ordinarily such a defect as will make the city liable for damages occasioned thereby." And entirely in harmony with the rule first announced above is the further doctrine that if the snow or ice is permitted to accumulate or to become rough and uneven, so that the slipperiness becomes more dangerous than if it lay in a smooth surface, it is generally held to constitute an obstruction, which the municipality must remove or pay resulting damages. Aurora v. Parks, 21 Ill.App. 459; 5...