Sullivan v. City of Butte

• Decision Date: 04 March 1937
• Docket Number: 7619.
• Citation: 65 P.2d 1175,104 Mont. 225
• Parties: SULLIVAN v. CITY OF BUTTE.
• Court: Montana Supreme Court

65 P.2d 1175

104 Mont. 225

SULLIVAN v. CITY OF BUTTE.

No. 7619.

Supreme Court of Montana

March 4, 1937

Rehearing Denied March 19, 1937.

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Action by Mary Sullivan against the City of Butte, a municipal corporation. Judgment for the plaintiff, and the defendant appeals.

Reversed and remanded, with direction.

ANGSTMAN J., and SANDS, C.J., dissenting.

F. C Fluent, of Butte, for appellant.

N. A Rotering, of Butte, and H. J. Freebourn, of Helena, for respondent.

ANDERSON Justice.

This action was instituted to recover damages for injuries sustained by plaintiff as a result of falling upon a sidewalk in the City of Butte. The verdict was for the plaintiff. Judgment was in conformity with the verdict. A motion for new trial was made and denied. The appeal is from the judgment.

At the close of the testimony a motion was made for a directed verdict, which was denied. Error is assigned on this ruling. The evidence shows without dispute that at a place in the 300 Block on North Montana street, where there had been a 6 1/2 per cent. grade, plaintiff fell and sustained injury. At the point where she fell a coalhole is located in the sidewalk. She testified that she slipped, or tripped and slipped, on the band around the coalhole cover, and that the sidewalk at the time was dry and without snow or ice. The coalhole door had knobs on it, and the collar or band around it had circular corrugations or grooves. Other witnesses testified that the collar was smooth and slippery and had been in such condition for a number of years. A photograph of the coalhole cover and of the surrounding sidewalk was received in evidence and has been certified to this court; it clearly reveals the existence of the circular corrugations or grooves on the collar or band around the door, as well as the knobs on the door itself. The band, at least on one side, was one-eighth of an inch above the level of the surrounding sidewalk. The jury viewed the premises. The record is barren of any evidence tending to show that any other accident had occurred at this point by pedestrians slipping on the band around the coalhole door.

The defendant was duty bound, under the law, to exercise ordinary care to keep its sidewalks in a reasonably safe condition for public travel. Olson v. City of Butte, 86 Mont. 240 283 P. 222, 70 A.L.R. 1352. Plaintiff argues that the evidence was sufficient to go to the jury on the question of the defendant's negligence, and bases her argument in the main upon what this court said in the case of Leonard v. City of Butte, 25 Mont. 410, 65 P. 425, 426. The part of the opinion in that case on which plaintiff relies reads as follows: "We are unable to see why a smooth and slippery condition of a walk, caused wholly by the peculiar construction of it, or resulting from wear by use of the material of which it is composed, may not be a defect, as well as a condition resulting from a fault in construction or from natural decay. A sidewalk upon which a person cannot step without peril of limb from slipping and falling seems equally as defective as one upon which he is constantly in danger of falling from stumbling, or in which there are unguarded openings rendering passage over it dangerous." The facts in that case were that in a sidewalk composed of cement blocks, of which four were broken and replaced, the new blocks were so hard and smooth that within a year 100 persons had slipped and fallen, and 25 persons within two months prior to the accident. In the light of these facts the court properly held that the question whether the walk was defective and in a dangerous condition was for the jury.

In the case of Beltz v. City of Yonkers, 148 N.Y. 67, 42 N.E. 401, 402, the court, in our opinion, announced a sound rule properly applicable to the facts in this case, when it said: "There are very few, if any, streets or highways that are or can be kept so absolutely safe and perfect as to preclude the possibility of accidents, and whether, in any case, the municipality has done its duty must be determined by the situation, and what men knew about it before, and not after, an accident. When the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when, as in this case, the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence, but still an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant's responsibility is one of law. Assuming that the defendant's officers were men of reasonable prudence and judgment, could they, in the reasonable exercise of these qualities, have anticipated this accident, or a similar one, from the existence of this depression in the walk? They could undoubtedly have repaired it at very little expense, but the omission to do so does not show or tend to show that they were negligent, unless the defect was of such a character that a reasonably prudent man should anticipate some danger to travelers on the walk if not repaired."

The rule is stated in 7 McQuillin on Municipal Corporations (2d Ed.) § 2974, as follows: "To keep all the sidewalks in perfect condition at all times is practically a municipal impossibility. For instance, slight inequalities are nearly always found, at one place or another, especially where there is much travel. Minor defects or obstructions are generally not actionable. Generally, in accordance with the principle sustained by a majority of the judicial decisions, early and late, these minor defects or obstructions include slight depressions in sidewalks, slight differences in the level of a sidewalk, *** inequalities at junction of concrete blocks of which the walk was composed, and small holes." The application of this rule is illustrated by the following cases: Emery v. City of Pittsburgh, 275 Pa. 551, 119 A. 603; City of Tulsa v. Frye, 165 Okl. 302, 25 P.2d 1080; Kleiner v. City of Madison, 104 Wis. 339, 80 N.W. 453; Van der Blomen v. City of Milwaukee, 166 Wis. 168, 164 N.W. 844; City of Huntington v. Bartrom, 48 Ind.App. 117, 95 N.E. 544; Johnson v. City of Ames, 181 Iowa, 65, 162 N.W. 858; Baker v. City of Detroit, 166 Mich. 597, 132 N.W. 462.

Accordingly we hold that the raise of an eighth of an inch of the collar around the coalhole was such a slight defect that reasonably prudent men could not have anticipated that it was likely to cause an accident.

The witnesses testified that the band around the coalhole door was smooth and slippery. Recovery has been awarded in a number of decisions where a coalhole door, or sidewalk, was slippery; but in all of the cases which we have found which permitted recovery, the fact that the coalhole covering in the sidewalk was slippery, or the sidewalk was slippery, was demonstrated by proving, as in our own case of Leonard v. City of Butte, supra, that other accidents had occurred previously to the one which was the basis of the suit. Smith v. City of Tacoma, 51 Wash. 101, 98 P. 91, 21 L.R.A. (N.S.) 1018; Latell v. Cunningham, 122 Minn. 144, 142 N.W. 141. Recovery has been denied by courts where the testimony showed that a sidewalk free of any defects was merely slippery. Cordish v. Bloom, 138 Md. 81, 113 A. 578; McCourt v. City of Covington, 143 Ky. 484, 136 S.W. 910.

Recovery was permitted as a result of a slippery condition of the sidewalk, without proof of other accidents, in the case of Cromarty v. Boston, 127 Mass. 329, 34 Am. Rep. 381, under a statute which provided for recovery for bodily injuries suffered "through a defect or want of repair" upon a "highway, *** if the same had existed for the space of twenty-four hours previous to the occurrence of the injury." Gen.St.Mass. 1860, c. 44, § 22. The Massachusetts statute made the city an insurer if a defect was present for the required time and injury resulted therefrom. No such statute obtains in this jurisdiction; yet the dissenting members of this court base their views, at least in part, upon a decision rendered under this particular statute, although the long-established rule in this jurisdiction, as noted supra, is to the contrary.

The witnesses testified that the band about the coalhole was smooth and slippery, and one witness testified that the corrugations were worn down but that a person could see where they had been. The photograph received in evidence and certified to this court as an exhibit reveals that the circular corrugations were not worn down to the point of their elimination. The whole width of the casing around the coalhole was 24 inches. The rim was about 4 inches wide. As stated, the corrugations on the rim were circular.

The primary question in this case is whether a defect existed in the sidewalk of sufficient magnitude to cause reasonable men to conclude that an accident was likely to occur as a result of such defect, and not whether the proper city officials had constructive notice of an alleged defect.

Witnesses on behalf of defendant city testified that the collar or band around the coalhole door was not smooth and slippery. The testimony most favorable to the plaintiff is that this band or collar was smooth and slippery. At best, these words are relative terms. None of the witnesses for plaintiff further described this condition. As the testimony stands in the record, it is at best the conclusion of these particular witnesses.

Viewing the testimony in the light most favorable to the plaintiff we are unable to say that reasonably prudent men could have reasonably anticipated...