Toole v. Paurine Parisian Dye House

• Decision Date: 05 January 1935
• Docket Number: 7286.
• Parties: TOOLE v. PAURINE PARISIAN DYE HOUSE.
• Court: Montana Supreme Court

39 P.2d 965

98 Mont. 191

TOOLE v. PAURINE PARISIAN DYE HOUSE.

No. 7286.

Supreme Court of Montana

January 5, 1935

Rehearing Denied Jan. 18, 1935.

Appeal from District Court, Silver Bow County; R. E. McHugh, Judge.

Action by Clara M. Toole against the Paurine Parisian Dye House, a corporation. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

ANGSTMAN J., dissenting.

George W. Howard, of Butte, for appellant.

M. J Doepker and Wm. B. Frame, both of Butte, for respondent.

PER CURIAM.

Plaintiff in this action obtained a verdict and judgment against the defendant in the sum of $5,500 as damages for physical injuries sustained by her as a result of a fall upon a private roadway in the city of Butte. The complaint alleges and the evidence, viewed in the light most favorable to plaintiff, shows, that she and her husband lived in a house situated on the rear of a lot and numbered 114 1/2 South Dakota street. The premises were rented from Delia Cox, who occupied a rooming house situated on the front of the lot and numbered 114 South Dakota street. To the north of these premises were buildings held by defendant under lease from Marie Rimbaud. A high board fence separated the two lots. Defendant operated a dry cleaning establishment on the premises leased by it, and owned and operated several trucks. Defendant also maintained a garage and a wash rack for washing cars immediately north of the board fence. On the south of the fence there was a private roadway about eight feet wide, running east and west, with a gate at each end. The roadway was bounded on the north by the high board fence and on the south, adjacent to the lot occupied by plaintiff, by a low fence. Garbage cans were placed in the driveway next to the high board fence for the use of plaintiff and the roomers in the rooming house at 114 South Dakota street. The roadway was used by plaintiff as a means of entrance to her home from Dakota street and as a means of going to and returning from her landlady's rooming house on the front of the lot.

The plaintiff's husband testified that prior to October 1st, when the weather "was not bad," he made complaint to his landlady, to Rimbaud, and to some one "at the Paurine washrack * * * just asked him if he couldn't stop that water from running across the yard there." Whether or not the lastindicated person was an employee of the defendant, and whether or not he was then washing a car of any description, does not appear from the transcript. No complaint was made after the weather turned cold and ice formed on the roadway.

Plaintiff and her husband moved into the house at 114 1/2 South Dakota street on September 11, 1931. Her husband made a pathway of ashes over the icy portion of the roadway for their use in going to Dakota street, as well as to the garbage cans. On November 27th, at 4 p. m., plaintiff proceeded to the home of Delia Cox, following, as best she could, the pathway made of ashes. The pathway was not discernible, because snow had blown over it. She reached there in safety, stayed about five minutes, and then attempted to return by the same route. On the return trip she fell and sustained the injuries of which she complains. As she started to leave the rooming house in returning to her home, she said to herself, "My goodness, a person has to be careful not to fall." She said, "I kept walking slowly and carefully as I could, and before I knew it, I had fallen. * * * I was following where I believed this path to be at all times, and I was walking as carefully as I possibly could." She said, "By reason of this snow that had covered it, I could not observe exactly where the outlines of the path were." On cross-examination she said that, as she was about to return to her home from the Cox rooming house, she said to herself, "I have to be careful or I will fall and break my neck some day." At the time she wore house slippers with leather soles and low heels.

The first point urged by defendant is that the complaint does not state facts sufficient to constitute a cause of action. The question was raised by general demurrer and by objection to the introduction of evidence. Briefly stated, defendant contends that, since it appears from the complaint that plaintiff knew of the dangerous condition of the roadway and made her own path with ashes, and since she knew the path was covered with snow so that it was not discernible, her act in attempting to use the pathway which she had constructed and in stepping off of it was the proximate cause of her injuries, and that, in order to state facts sufficient to constitute a cause of action, it was incumbent upon her to allege facts exculpating her from the imputation of contributory negligence.

Ordinarily, the defense of contributory negligence is one that must be pleaded and proved by defendant. Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 P. 940. A well-established exception to this rule is stated in Armstrong v. Billings, 86 Mont. 228, 283 P. 226, 229, and in cases therein cited, upon which defendant relies. In the Armstrong and other cases where the same rule was applied, such as Kennon v. Gilmer, 4 Mont. 433, 2 P. 21; Badovinac v. Northern Pacific Ry. Co., 39 Mont. 454, 104 P. 543; Lynes v. Northern Pacific Ry. Co., 43 Mont. 317, 117 P. 81, Ann. Cas. 1912C, 183, the plaintiff's own deliberate, intentional, and voluntary act was shown to have caused the injuries. In such cases the rule is that "the plaintiff having alleged in his complaint that the proximate cause of his injury was his voluntary act in jumping from the moving train, he thereupon assumed the burden of alleging facts sufficient to show that in so doing he was not guilty of contributory negligence," or, as stated in the Armstrong Case, "the requirement, therefore, is, not that the plaintiff must allege in set terms that he acted as a reasonably prudent person would have acted under the circumstances and was not chargeable with contributory negligence, but that he must allege facts from which it must necessarily be implied, or from which it can be reasonably inferred, that, although his act was the, or a, proximate cause of his injury, in so acting he was moved by those considerations for his own safety which would actuate a reasonably prudent person, similarly situated, to do as he did, and that he was, consequently, not guilty of contributory negligence barring recovery."

The rule as stated above in the Armstrong and other cases is undoubtedly correct, but it has no application to the facts here alleged. The fallacy of defendant's argument rests in the supposition that plaintiff's own act as pleaded in the complaint was prima facie the, or a, proximate cause of her injuries. From the complaint before us it does not appear that plaintiff did any act voluntarily that placed her in a place of known danger. According to the allegations of the complaint, she believed she was on the path made of ashes. She did not realize that she had stepped off of it until she had fallen. Moreover, had she voluntarily walked over the icy portion of the highway, she would not necessarily have been guilty of contributory negligence as matter of law.

It is true that more care is required in walking on an icy or slippery walk or pavement than on others (McQuillin on Municipal Corporations [2d Ed.] § 3011, note 20; City of Denver v. Hubbard, 29 Colo. 529, 69 P. 508); but, "if a pedestrian, although he knows of a defective condition in a sidewalk, has passed over it many times in safety, and believes he can do so again, he is not guilty of contributory negligence per se, since in such case there cannot be said, as a matter of law, to be a want of ordinary care. So it is not necessarily contributory negligence to use an icy sidewalk." McQuillin on Municipal Corporations (2d Ed.) § 3014.

Here plaintiff had, five minutes before her return trip, passed over the pathway in safety. Nothing had intervened to change its condition. We cannot say, as a matter of law, that she was negligent in attempting the return trip, believing, as she alleged, that she was on the pathway which was covered with snow, but that she, "without fault on her part, stepped off of the same and onto the frozen surface of the ridged and slippery ice." The complaint does not, as matter of law, show presumptively that plaintiff's injuries were proximately caused by her own negligent act, calling for allegations exculpating her from the effects thereof, within the rule of the Armstrong Case and cases cited therein.

The next contention of defendant is that the evidence shows, as a matter of law, that plaintiff was guilty of contributory negligence barring recovery. The contention is that, since plaintiff knew of the dangerous condition of the roadway and appreciated the danger in attempting to pass over it, her own contributory negligence was the proximate cause of her injuries, and hence that she cannot recover. Whether plaintiff was in the exercise of due care for her own safety was a question for the jury to determine, even though she knew of the presence of ice and appreciated the danger incident to attempting to cross it. Hynes v. Brewer, 194 Mass. 435, 80 N.E. 503, 9 L. R. A. (N. S.) 598; Brown v. White, 206 Pa. 106, 55 A. 848; Green v Hollidaysburg Borough, 236 Pa. 430, 84 A. 785; Holbert v. City of Philadelphia, 221 Pa. 266, 70 A. 746, 748, 20 L. R. A. (N. S.) 201; Lucy v. City of Norwich, 93 Conn. 545, 106 A. 762; Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A. L. R. 287; Meallady v. City of New London, 116 Conn. 205, 164 A. 391; Massor v. Yates, 137 Or. 569, 3 P.2d 784; Hubbard v. City of Wood River, 244 Ill.App. 414; Watkins v. Goodall, 138 Mass. 533; De Wall v. City of Sioux City, 181 Iowa, 333, 164 N.W. 640; DeMateo v....