Tonn v. City of Helena

• Decision Date: 25 October 1910
• Citation: 111 P. 715,42 Mont. 127
• Parties: TONN v. CITY OF HELENA.
• Court: Montana Supreme Court

111 P. 715

42 Mont. 127

TONN v. CITY OF HELENA.

Supreme Court of Montana

October 25, 1910

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Action by Henrietta Tonn against the City of Helena. From a judgment for defendant rendered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

C. A Spaulding, for appellant.

Edward Horsky, for respondent.

HOLLOWAY J.

A demurrer to the complaint was sustained, and plaintiff declining to plead further, suffered judgment to be rendered and entered against her, and has appealed to this court.

The action is for damages for personal injuries alleged to have been sustained by the plaintiff as the result of a fall upon a sidewalk in the city of Helena. It is alleged in the complaint that, immediately prior to the time of the injury (January 15, 1909), snow and ice had accumulated on the sidewalk in question, and, by reason of persons traveling over it, the surface had become rough, ridged, uneven, and dangerous, and because of this condition plaintiff slipped, fell, and sustained injuries. It is then alleged that there was not any notice whatever given to the city of Helena, or its authorities, of the injuries. The complaint was filed on December 29, 1909.

Section 3289, Rev. Codes, reads as follows: "Before any city or town in this state shall be liable for damages for, or on account of any injury, or loss alleged to have been received or suffered by reason of any defect in any *** sidewalk *** in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council or trustee, or other governing body of such town or city, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred." (Italics ours.)

1. It is very earnestly contended by counsel for appellant that by the use of the phrase "defect in any sidewalk" the Legislature must have meant to refer only to some structural deficiency of a sidewalk, and did not mean to include an obstruction on or a defect in the condition of the walk, and, as plaintiff's injuries resulted from an obstruction on the walk, her case does not fall within the class mentioned in the statute above, and notice to the city was not a condition precedent to her right to recover. In support of the contention that an accumulation of snow and ice on a sidewalk cannot be understood to constitute a defect in the walk, counsel for appellant cites McKellar v. Detroit, 57 Mich. 158, 23 N.W. 621, 58 Am. Rep. 357. The plaintiff in that action was injured by slipping on a crosswalk in the city of Detroit. The statute under consideration was entitled "An act for the collection of damages sustained by reason of defective public highways, streets, bridges, crosswalks and culverts." The body of the act gave a right of action for injuries sustained through the negligence of any township, village, or city in failing to keep its highways, streets, bridges, crosswalks, or culverts in good repair and in a condition reasonably safe and fit for travel. The court held, in effect, that the statute did not make any distinction whatever between a city and a township; that, if the city should be required to keep its roadways free from accumulated snow and ice, the same burden would necessarily be imposed upon the township. After reviewing the circumstances surrounding the enactment of the statute, the court reached the conclusion that it was not within the contemplation of the Legislature that a mere accumulation of snow and ice should constitute a defect in the roadway. The case was decided in 1885.

Another case upon which great reliance is placed by counsel for appellant is Kansas City, M. & M. R. R. Co. v Burton, 97 Ala. 240, 12 So. 88. In that case there was under consideration the employer's liability law of Alabama, which the court says was "copied from the English employer's liability act (St. 43 & 44 Vict.)," which provides for recovery of damages for injuries occasioned "by reason of any defect in the condition of the ways, walks, machinery or plant connected with or used in the business of the employer." The Alabama court reviews the decisions of the English courts construing the act, and, following the English interpretation of the statute, reached the conclusion that a car set upon a side track does not constitute a defect in the main track, even though the car was set so close to the main...