Tiddy v. City of Butte
Decision Date | 01 March 1937 |
Docket Number | 7647. |
Citation | 65 P.2d 605,104 Mont. 202 |
Parties | TIDDY v. CITY OF BUTTE. |
Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; T. E. Downey, Judge.
Action by Charles Tiddy against the City of Butte. Judgment for plaintiff, and defendant appeals.
Affirmed.
F. C Fluent, of Butte, for appellant.
H. J Freebourn and N. A. Rotering, both of Butte, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by the plaintiff on account of a defective sidewalk on Caledonia street in the city of Butte.
October 19, 1935, between the hours of 11 and 12 o'clock p. m the plaintiff, in company with the witness Frank Stafford, was on his way home and, after stopping to talk for a few minutes on the alley crossing near the place of the accident, Stafford started across the street in the direction of his home and the plaintiff proceeded west on Caledonia street. Stafford, after proceeding a few steps and hearing the plaintiff stumble, turned around but could see nothing of the plaintiff. There were street lights at either end of the block near the center intersection of the cross streets, and Stafford testified that he could have seen the plaintiff if he had been on the sidewalk, and, not seeing him, he hurried back and on looking over the embankment saw the plaintiff lying face down at the bottom of an excavation near the sidewalk. Oral and photographic evidence was introduced to show that a house had formerly been located over an excavation just at the side of and adjoining the sidewalk. The house had either been destroyed or torn down and the material moved away, leaving rocks and rubbish in the bottom of the excavation. The evidence also shows that a concrete basement wall had been built up between the sidewalk and the excavation or basement of the building, and such wall was apparently attached to the concrete sidewalk and extended some eight inches above the top of the walk. In the concrete wall iron posts had been fixed and iron bars or strips attached to the posts, and the whole supported an iron railing which had theretofore made a substantial fence or barrier between the sidewalk and the excavation. An opening had been left in the upper part of the concrete wall and the fence for steps leading down into the excavation or basement.
It appears from the photographs and other evidence that three posts had originally been placed in the cement between the end of the wall at the alley intersection and the opening where the steps led down from the sidewalk to the basement, but only two of such posts were in place at the time of the accident, the one nearer the basement entrance being gone. All that was left of the original railing were the two posts nearest the alley and the lower crossbar between the two remaining posts, such crossbar appearing to rest down near the top of the concrete wall in which the posts were fixed. Obviously, the plaintiff had fallen off the sidewalk over the concrete wall somewhere between the alley line and the open space for the down stairway steps.
When Stafford reached the plaintiff after the fall, he appeared to be dazed but was trying to get up, and was bleeding at the nose and mouth. Stafford helped him to his feet and took him home a few blocks away where the plaintiff was able to go with Stafford's assistance. Stafford and plaintiff's wife gave plaintiff such first aid as they could by way of stopping the flow of blood, and he was then taken to the Murray Hospital where it afterwards developed that both wrists were broken, and he was bruised and cut about the face and various parts of the body and complained of severe pain.
In addition to the foregoing facts, the complaint alleges, in substance, that plaintiff stumbled over a defective place in the sidewalk and fell over into the excavation adjoining the sidewalk and, in addition to breaking his wrists, strained his neck, back, and legs and was made lame, and his nose was bruised and bent so he could not breathe from the left side; and that he suffered great shock from his injuries and grievous physical and mental pain. It is alleged that the defective condition of the sidewalk had existed for more than thirty days immediately prior to the accident and that the defendant knew, or by the exercise of due diligence should have known, of such condition; that a portion of the concrete had become worn and broken away and that there was a hole where the concrete had worn away, leaving that part of the surface several inches below the surface of the other portions; that he stepped into the broken place in the sidewalk and stubbed the toe of his shoe against the part of the cement sidewalk that had not been broken and which extended several inches above the hole where the cement had worn away, and that he was caused to stumble and fall; that the distance he fell from the sidewalk to the bottom of the excavation was approximately ten feet; that the railing between the sidewalk and the excavation that had once been there had been torn away except two iron posts about six feet apart and one cross strap running parallel with and a few inches above the upper part of the cement wall, and that after he stumbled and lost his balance there was no substantial fence or barrier to prevent his falling into the excavation; that there were no signals to warn persons of danger in traveling over the sidewalk, and that it was one of the principal thoroughfares of the defendant city; that by reason of the injuries sustained plaintiff was compelled to obtain the services of physicians and surgeons, hospital accommodations, and incur other expenses. It was further alleged that plaintiff was by occupation a carpenter and that he was earning the sum of $37.50 per week at the time of the accident and was unable to work for several weeks thereafter.
Defendant's demurrer to the complaint was overruled. The answer, after admitting the incorporation of the city, denied all the material allegations of the complaint and then, by way of affirmative defense, alleged contributory negligence on the part of plaintiff. The affirmative matter in the answer was denied by the reply.
The cause was tried before the court sitting with a jury and a verdict was returned in favor of the plaintiff fixing his damages at $3,000, and judgment was entered accordingly. Defendant's motion for a new trial was made, argued, and denied. The appeal is from the judgment.
Defendant assigns seven specifications of error which will be taken up in order. Specification No. 1 is directed to the court's instruction No. 3 given to the jury. Such instruction was, in substance, that if the jury found that the sidewalk at the time and place where the accident occurred was not in a reasonably safe condition for travel by foot travelers and passengers, by reason of the condition of the concrete and by the further reason of the absence of any fence or barrier, and that the defendant knew, or by the exercise of ordinary care and diligence should have known, of the unsafe condition of such sidewalk for a period of time reasonably sufficient to have remedied the same before the injuries to the plaintiff, and "if plaintiff on October 19, 1935, while in the exercise of ordinary and reasonable care was walking on said sidewalk and stepped into the said worn and or broken away part of said concrete and stumbled and was caused to fall and sustained the injuries complained of, then your verdict must be in favor of the plaintiff and against the defendant."
This was the only instruction tendered by the plaintiff that was objected to by the defendant. The objection advanced by its counsel was that such instruction "fails to take into consideration elements of due care and reasonable diligence" imposed upon plaintiff. We think the instruction imposes such reasonable care on both parties as to bring it into entire harmony with established rules and that the objection made at the time and reiterated now is without merit.
Specification numbered 2 is directed to instruction No. 11. This instruction was tendered by defendant, who contends the law embodied therein was ignored by the jury in that the testimony shows that plaintiff failed to...
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