Opinion
No. 7,498.
Submitted February 11, 1936.
Decided March 9, 1936.
Personal Injuries — Cities and Towns — Icy Sidewalks — When Abutting Owner Liable in Damages — Constitutional Law. Constitutional Law — Courts — Rights of Person to Speedy Remedy for Personal Injury — Meaning of Provision. 1. The provision of the Constitution (sec. 6, Art. III) that courts shall be open to every person, and a speedy remedy afforded for every injury of person, etc., is addressed to the courts and means no more than that the courts must be accessible to all persons alike and afford a speedy remedy for such injuries as the law recognizes as actionable. Cities and Towns — Personal Injuries — Icy Sidewalks — Action for Injury — Constitutional Law. 2. Under the above construction of section 6, Article III, of the Constitution, argument that, since the enactment of Chapter 132, Laws of 1929, relieving cities and towns from liability for injuries sustained by a fall on an icy sidewalk, such person would be deprived of his constitutional right to have a remedy if the abutting owner be not held liable, held not meritorious. Same — Negligence — Person Assuming to Discharge Duty of Another — Liability for Neglect of Duty. 3. Where a person voluntarily assumes to discharge a duty imposed upon another he must discharge it in such a manner that those who act on the supposition that the duty was properly performed shall not suffer loss or injury by reason of negligent failure so to perform it. Same — Case at Bar. 4. Under the last above rule held, in an action to recover for personal injuries by a fall on a city sidewalk caused by an accumulation of ice and snow thereon against the owner of the abutting property, that though the city was primarily chargeable with the duty of keeping the streets, including the sidewalks, in a reasonably safe condition for travel, where the abutting owner had constructed the walk and had assumed the duty of removing therefrom accumulations of ice and snow, he was properly held liable for the injuries.
Appeal from District Court, Deer Lodge County, in the Third Judicial District; T.E. Downey, a Judge of the Second Judicial District, presiding.
Mr. William R. Taylor and Mr. J.B.C. Knight, for Appellant, submitted a brief.
Mr. Sid G. Stewart, for Respondent, submitted a brief and argued the cause orally.
Respondent's complaint does not state facts sufficient to constitute a cause of action, for the reason that she has failed to allege and prove the breach of any duty owing by appellant to respondent that resulted in damages to the respondent. Actionable negligence arises only from the breach of a legal duty. ( Jonosky v. Northern P. Ry. Co., 57 Mont. 63, 187 P. 1014; McIntyre v. Northern Pacific Ry. Co., 56 Mont. 43, 180 P. 971; Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874; Mitchell v. Thomas, 91 Mont. 370, 8 P.2d 639.) To state a cause of action it is necessary that the complaint disclose by a statement of facts — not legal conclusions — the duty, the breach thereof, resulting damages, and that the breach of the duty was a proximate cause of the injury. ( Brown v. Columbia Amusement Co., supra; Fusselman v. Yellowstone etc. Co., 53 Mont. 254, 163 P. 473, Ann. Cas. 1918B, 420; Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 P. 336.) As in all personal injury cases, where a pedestrian suffers injury by reason of a defective sidewalk, the question is: Did the defendant breach a duty owing to the plaintiff? ( Mitchell v. Thomas, supra.)
The law is well settled in this state by a long line of decisions that an abutting property owner is not liable for failure to keep the sidewalks in front of his premises in repair. ( Headley v. Hammond Building, Inc., 97 Mont. 243, 33 P.2d 574, 93 A.L.R. 794; Childers v. Deschamps, 87 Mont. 505, 290 P. 261; Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809; Mitchell v. Thomas, supra; State ex rel. Rocky Mountain Bell Tel. Co. v. Red Lodge, 30 Mont. 338, 76 P. 758; Cascade County v. City of Great Falls, 18 Mont. 537, 46 P. 437; Mullins v. City of Butte, 93 Mont. 601, 20 P.2d 626.)
The law in this state is that primarily the city is charged with the duty of keeping its streets, including the sidewalks, in a reasonably safe condition for travel, and that an abutting owner is not liable for failure to keep the sidewalks in front of his premises in repair, unless he creates a dangerous condition in the sidewalk by placing some obstruction thereon entirely foreign to its use as a sidewalk such as a coal-hole, man-hole, areaway, light-well, and permits these devices to become dangerous by failure to repair them. Respondent by merely alleging that appellant had permitted the sidewalk to become dangerous to pedestrians by reason of low and sunken places thereon, did not state a cause of action, for the reason that the duty was upon the city to keep the sidewalk in repair, and appellant's failure to keep it in repair, not being responsible for such repair, was not a breach of any legal duty appellant owed respondent, and therefore appellant's demurrer should have been sustained.
The law in Montana regarding this class of cases is well settled by a long line of decisions to the effect that the fee to the street is in the state; the city is but a trustee thereof, and a sidewalk is but a part of the street; that the city has the same control over and duties with reference to the sidewalk as it has respecting any other part of the street; that primarily the city is charged with the duty of keeping its streets, including the sidewalk, in a reasonably safe condition for travel, and that under these decisions an abutting owner is not liable for failure to keep the sidewalk in front of his premises in repair. ( Nord v. Butte Water Co., supra; City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593; Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 21 Ann. Cas. 1372, 36 L.R.A. (n.s.) 666; Mitchell v. Thomas, supra; 6 McQuillin on Municipal Corporations, 2796; State ex rel. Rocky Mt. Bell Tel. Co. v. Red Lodge, supra; Cascade County v. City of Great Falls, supra; Mullins v. City of Butte, supra; Headley v. Hammond Building, Inc, supra; Childers v. Deschamps, supra.)
In the case of Nord v. Butte Water Co., supra, this court stated that the power of a city to permit any private use of its streets shall be exercised only for the benefit of the general public. ( Adams v. Ohio Falls Car Co., 131 Ind. 375, 31 N.E. 57; Mikesell v. Durkee, 34 Kan. 509, 9 P. 278); that therefore a city is liable in the first instance in case of injury, although the defect is caused by the negligence of another also liable.
A city will be liable for an injury growing out of defective sidewalk, notwithstanding a provision in its charter, requiring the abutting property owner to maintain the sidewalk and making him liable for such injury; this because the care which devolves upon the city as a trustee of the public cannot be delivered or surrendered, though, of course, the city may have an action against the property owner, whose negligence resulted in the injury. In this case the appellant did not by any affirmative act create a dangerous condition in the sidewalk. As far as the proof goes the sidewalk in question had not in or on it anything foreign to its use as a sidewalk and any low or sunken depressions in it came about through its use by the public.
Plaintiff brought this action to recover damages for personal injuries sustained by her when, on September 23, 1934, she fell on a sidewalk as a result of the accumulation of ice and snow thereon in front of the building owned by the defendant in the city of Anaconda.
The plaintiff charged in her complaint that the sidewalk for a long time prior to the date of the accident was in a defective and dangerous condition, in that it was sunken and depressed so that it made portions of it lower than the remainder of the walk, and that these depressions collected pools of water which accumulated, froze and made the sidewalk slippery and dangerous. It was alleged that the sidewalk on which the plaintiff fell at the time of her injury contained these frozen pools of water, and that the ice was covered with a light fall of snow. The defendant answered denying the negligence, and the cause was tried before the court sitting with a jury. The defendant, prior to filing its answer, by demurrer challenged the sufficiency of the complaint for want of substance, and again by objection at the commencement of the reception of testimony upon the same ground.
At the close of plaintiff's case the defendant made a motion for nonsuit, which was denied, and thereafter, without offering any proof, moved for a directed verdict; this motion was likewise denied. Numerous objections were made during the progress of the trial to the reception of evidence. The cause was submitted to the jury, and a verdict for plaintiff was returned in the sum of $1,000. Judgment was entered in accordance with the verdict. The appeal is from the judgment.
Numerous specifications of error seek to review these various [1, 2] rulings. All of them seek to raise the question whether the defendant company, which was the owner of the property abutting the sidewalk on which plaintiff fell, under the facts is liable in damages. The defendant argues that under the decisions of this court there is no liability upon an abutting property owner as a result of injuries sustained on a defective sidewalk in front of the premises. In the case of Headley v. Hammond Building, Inc., 97 Mont. 243, 33 P.2d 574, 576, 93 A.L.R. 794, we quoted with approval what was said in the case of Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809, wherein it was written: "In this state the fee to the street is in the state; the city is but a trustee thereof ( City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593); a sidewalk is but a part of the street. ( Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 21 Ann. Cas. 1372, 36 L.R.A. (n.s.) 666; Mitchell v. Thomas, 91 Mont. 370, 8 P.2d 639.) The city has the same control over, and duties with reference to, the sidewalk as it has respecting any other part of the street. (6 McQuillin on Municipal Corporations, 2796.) Primarily the city is charged with the duty of keeping its streets, including the sidewalks, in a reasonably safe condition for travel." (Citing cases.) We also declared in the same opinion: "If a city ordinance requires the abutting owner to keep the sidewalk in repair, the city's duty to the public is not affected; it merely makes the abutting owner a joint agent with the city officials for the performance of the city's duties. ( Nord v. Butte Water Co., supra; Childers v. Deschamps, 87 Mont. 505, 290 P. 261.) * * * Defendant company, having once repaired the walk, was not therefore bound as a result of that operation to keep it in repair. (43 C.J. 1105; Dixon v. Missouri P. R. Co., 104 Kan. 404, 179 P. 548; McCarthy v. Adams, 42 Ohio App. 455, 182 N.E. 324.)"
Plaintiff concedes that in the ordinary causes of defective sidewalks the abutting owner is not liable, but argues that, since cities and towns have been relieved from all liability for the accumulation of snow and ice on sidewalks under the provisions of Chapter 132 of the Laws of 1929, a person injured by falling on an icy sidewalk would have no remedy if the abutting owner were not held liable. Her counsel's argument proceeds upon the theory that under the provisions of section 6, Article III, of the Constitution, reading as follows, "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character," the constitutional right of the plaintiff to have a remedy for her injury cannot be denied.
Some courts under a similar constitutional provision have adopted a view in accordance with the contention of plaintiff, as illustrated by the case of Mattson v. Astoria, 39 Or. 577, 65 P. 1066, 87 Am. St. Rep. 687, which held that, although the legislature had power to change the remedy which existed at the time of the adoption of the Constitution, it was powerless to deny to an injured party who had a remedy under the common law all relief whatever. This court, however, has interpreted this provision of the Constitution somewhat differently. In the case of Shea v. North-Butte Min. Co., 55 Mont. 522, 179 P. 499, 502, it was contended that the Workmen's Compensation Act was repugnant to this provision of the Constitution, in that it denied to persons injured the right to maintain an action in the courts, and in disposing of this contention the court said: "But counsel are in error in supposing that for this reason the Compensation Act is repugnant to the section of the Constitution quoted. Their contention is based upon a misconception of the scope of the guaranty therein contained. A reading of the section discloses that it is addressed exclusively to the courts. The courts are its sole subject-matter, and it relates directly to the duties of the judicial department of the government. It means no more nor less than that, under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, without discrimination, at the time or times, and the place or places, appointed for their sitting, and afford a speedy remedy for every wrong recognized by law as being remediable in a court. The term `injury,' as therein used, means such an injury as the law recognizes or declares to be actionable. Many of the state Constitutions contain similar provisions, and the courts, including our own, have held, either expressly or impliedly, that their meaning is that above stated. [Citing cases.] If the contention of counsel should be upheld, the consequence would be that the legislature would be stripped of all power to alter or repeal any portion of the common law relating to accidental injuries or the death of one person by the negligence of another."
It appears from the record — and it is undisputed — that the [3, 4] sidewalk in question in front of the premises owned by the defendant was defective as charged in the complaint, and had been defective for some considerable period of time prior to the injury sustained by plaintiff. The sidewalk was constructed by the defendant. It had been maintained by the defendant at all times after its construction. The defendant had "control over the sidewalk in regard to clearing away snow and ice and water accumulating on the sidewalk." It employed janitors whose duty it was to clean the sidewalk, and they ordinarily performed this duty at about the hour of 7:30 in the morning. The accident in question occurred about 8:30 in the morning, and the employees of the defendant removed the ice and snow from the sidewalk on that same morning following the accident at some time prior to 10 o'clock. Thus it clearly appears from the record that the defendant assumed the duty of constructing and maintaining the sidewalk, and of removing therefrom accumulations of ice and snow.
In 45 C.J. 650, it is said: "The governing rule is that, where a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of negligent failure so to perform it." This rule therein announced is recognized by many text-writers and in innumerable decisions of the courts. (See 2 Wharton on Negligence, 2d ed., p. 365, and 1 Street on Foundation of Legal Liability, p. 188.) A great many cases wherein this principle has been applied are reviewed in the opinion in the case of O'Brien v. American Bridge Co., 110 Minn. 364, 125 N.W. 1012, 136 Am. St. Rep. 503, 32 L.R.A. (n.s.) 980 (a bridge). (See, also, Harriman v. New York, C. St. L.R. Co., 253 N.Y. 398, 171 N.E. 686 (a private railway crossing); Cummings v. Henninger, 28 Ariz. 207, 236 P. 701, 41 A.L.R. 207 (a sidewalk); Hartley v. Roondale, [1908] 2 K.B. 594 (a road).)
This case is distinguishable from that of Headley v. Hammond Bldg., Inc., supra, in that, although there the defendant had constructed the sidewalk and had repaired it once, there was no showing that the defendant had there assumed the duty of maintaining the sidewalk. Here the defendant constructed the sidewalk, assumed the duty of maintaining it, and in particular undertook the duty of removing accumulations of snow and ice from it. We think that the defendant, under the facts in this case, was liable to the plaintiff under the rule mentioned, supra. Accordingly, the judgment is affirmed.
ASSOCIATE JUSTICES MATTHEWS, STEWART and MORRIS concur.
MR. CHIEF JUSTICE SANDS, being absent, did not hear the argument and takes no part in the foregoing opinion.