Townsend v. City of Butte

• Decision Date: 15 June 1910
• Citation: 109 P. 969,41 Mont. 410
• Parties: TOWNSEND v. CITY OF BUTTE.
• Court: Montana Supreme Court

109 P. 969

41 Mont. 410

TOWNSEND v. CITY OF BUTTE.

Supreme Court of Montana

June 15, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Marguerite Townsend against the City of Butte. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Edwin M. Lamb, John R. Boarman, and N. A. Rotering, for appellant.

Roote & Murray, James E. Healy, and A. C. McDaniel, for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries. The plaintiff recovered judgment, and the city has appealed from the judgment and from an order denying it a new trial.

It is first contended that the complaint does not state facts sufficient to constitute a cause of action. In their brief counsel for the city say: "A careful reading of the complaint will disclose the fact that it fails to state whether the plaintiff fell by reason of the snow on the ice or by reason of the slipperiness of the ice, or whether it was caused by the ice being slanting or smooth." In the district court a demurrer was interposed to the complaint but it did not raise or suggest the infirmity pointed out above. Had it done so, possibly it should have been sustained. But the special demurrer which was interposed was properly overruled, and we are now left to say whether the complaint is sufficient to withstand a general demurrer.

The negligence charged in the complaint consists in: (a) Permitting ice and snow to accumulate on the sidewalk at the point where the injury occurred, forming a smooth, slippery and slanting surface dangerous to pedestrians; (b) failing to remove the same after due notice; and (c) failing to place a warning signal at the dangerous place. The complaint charges: "That by reason of the said negligence and carelessness of the said city of Butte this plaintiff on the 11th day of December, 1903, while lawfully traveling and walking on said sidewalk at a point on the south side of West Quartz street about 15 feet west of North Montana street, slipped and fell thereon." This allegation is followed by a recital of the injuries received by the plaintiff and the resulting damages which she sustained. As against a general demurrer, we think this complaint sufficiently shows the negligence of the city and its causal connection with the plaintiff's injuries. Fearon v. Mullins, 38 Mont. 45, 98 P. 650; City of Franklin v. Davenport, 31 Ind.App. 648, 68 N.E. 907.

Much consideration is given in both briefs to the question: Is a city liable for damages for injuries occasioned by mere slipperiness of a sidewalk caused by snow or ice? But that question was answered in the negative by the trial court in its instruction No. 14a, and is not before us now. Rather the question which this record suggests is: Can a city be held liable for damages for injuries occasioned by its failure to remove from a sidewalk under its control snow and ice which have accumulated and formed on the sidewalk a smooth slippery, and slanting surface over which it is dangerous for pedestrians to travel, and such condition is permitted to remain for an unreasonable time after the city has actual or constructive notice thereof? After reviewing the decided cases at great length, Thompson, in his Commentaries on the Law of Negligence (section 6191), says: "Coming back to the sound and sensible doctrine...