Maring v. City of Billings

*254 MR. JUSTICE ANDERSON delivered the opinion of the court. Plaintiff brought action against the city of Billings to recover for personal injury sustained in a fall into an excavation in one of the city’s streets. A general demurrer to the complaint was sustained, and judgment entered thereon for defendant from which plaintiff has appealed. The complaint is lengthy, with pleading of city ordinances relating to building permits and excavations in the streets and allegations as to general practice followed by the city officials in respect to the regulations provided for therein. The fact allegations as to what occurred and as to the negligence relied on as ground of recovery are substantially as follows: The excavation into which plaintiff fell was in á parking strip between the sidewalk and the curb. It was directly in front of a lot on which a new house was under construction and had been made in laying a water pipe and making connection with the city water main. It was covered over with loose boards and planks. The parking was faced with a concrete curb next to the street paving but was not yet surfaced with grass and was muddy. It was in the daytime, 9 :45 in the morning of October 3rd. Plaintiff, alighting from an automobile in the paved street, undertook to cross over to the sidewalk, and walking on the boards and planks over the excavation, fell in and was injured. The excavation was about six feet deep and large enough in other dimensions for a man to work in. The connection with the water main had been completed by the plumber and the excava *255 tion had been left partly open for inspection to be made by the City Water Department, as was the practice in making such water service connections. There were no warning signs and no guards or covering other than the loose boards and planks laid over the hole. The negligence complained of against the city was its failure to see to it that those making the excavation would have it securely covered and have signs, markers or signals placed there to warn pedestrians, and in that the city itself had failed to cover the excavation securely and to erect such warning signs. Negligence is also predicated upon the failure of the city to close the excavation as soon as possible after completion of the work for which it had been opened. The error specified is the sustaining of the demurrer and the entry of judgment for the defendant. The sole question presented is whether the complaint states a cause of action. Counsel on both sides have treated the case upon the premise of the excavation as creating a condition of the street which was dangerous to pedestrians and the injury sustained by the plaintiff as being the direct result thereof. The whole argument has been upon the question of responsibility for the condition of danger in the street and whether the city was involved to the extent that it is liable for the damage. In that aspect of the case the decision would rest on the question of notice and knowledge of the condition by the city, for it is its duty to keep the streets and all public ways in reasonably safe condition for travel. The rule is that for any dangerous condition of the streets brought about by the city itself it is responsible, and for any such condition brought about other than by acts done by the city itself the city’s responsibility arises upon notice thereof, and for injury resulting to anyone therefrom it is liable only if it “had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received.” It is so provided by Chapter 122, Laws of 1937, amending section 5080 of the Revised Codes of 1935. *256 *255 For the application of the rule we must first have a case to *256 which it applies. The city is not an insurer of absolute safety to pedestrians in the use of the streets and other public ways, nor is it liable for injury sustained by pedestrians because of their own carelessness in traveling where there may be danger of injury to them. And so here it is necessary first to determine whether the facts as related in plaintiff’s complaint show that the excavation in the place where it was and the condition in which it was left could be reasonably said to be of danger to pedestrians, and that the injury sustained by the plaintiff was caused by the failure of the city to warn pedestrians against the danger. *257 *256 The excavation was in the parking where pedestrians do not ordinarily walk. It was between the sidewalk and the paved street and there was no necessity for anyone to walk there. A person walking on the sidewalk or in the street would be in no danger due to the excavation being in the parking. On the abutting lot a new house was under construction with the premises generally torn up and in an unfinished condition. The excavation was freshly made and there must have been the dirt from it piled up alongside. The hole was of a size large enough for a man to work in and was covered over with loose boards. There was no necessity for anyone walking across at this particular place and there was nothing about the situation there, as disclosed by the complaint, as being suggestive of the boards being laid there for that purpose. In fact, it could not reasonably be assumed that a prudent person would choose such a place to walk in view of the muddy, torn-up condition of the premises generally. Even if the city officials knew all about the excavation and had seen it in the condition it was in on October 3rd, we cannot see any negligence in their failure to place more secure covering over it nor in failing to erect barriers and warning signs to keep pedestrians from walking over it. At night, warning lights might reasonably have been required to guard against anyone unknowingly coming upon it. But we are not concerned about the condition there at night. This was in the forenoon of the day, in broad daylight. Everything was open to view. Warn *257 ing signs were not necessary to tell of what was there. It could all be seen. When the conditions on the ground are plainly visible and are themselves a warning of danger, barriers and warning signs are unnecessary to ward off pedestrians. (Lombardi v. Bates & Rogers Const. Co., 88 Wash. 243, 152 Pac. 1025; Compton v. Revere, 179 Mass. 413, 60 N. E. 931; City of Rock Island v. Cingles, 217 Ill. 185, 75 N. E. 468; District of Columbia v. Moulton, 182 U. S. 576, 21 S. Ct. 840, 45 L. Ed. 1237.) Plaintiff, alighting from an automobile on the paved street in the vicinity of the excavation wanted to get on the sidewalk. Between the street paving and the sidewalk was the strip of unfinished parking, without grass and muddy. There was the excavation with boards laid over it. Plaintiff, rather than going to the corner crossing to reach the sidewalk, chose to walk on the boards over the excavation. She was in no way misled. What she did was of her own volition. It was at her own peril that she chose this way of reaching the sidewalk. For any injury resulting to her in walking where she did, she cannot lay the blame on the city. (O’Laughlin v. The City of Dubuque, 42 Iowa 539; Lombardi v. Bates & Rogers Const. Co., supra.) The complaint contains no allegations of the exercise of care by the plaintiff. On the contrary, it shows affirmatively that it was her own lack of care and her own rashness in undertaking to walk where she could see there was danger of a fall that produced the injury of which she complains. The infirmity of plaintiff’s case is shown by the complaint itself in that it appears her own negligence was the proximate cause of the injury. No cause of action is stated and the demurrer to the complaint was properly sustained. (Armstrong v. Billings, 86 Mont. 228, 283 Pac. 226; Raymond v. City of Lowell, 6 Cush. Mass., 524, 53 Am. Dec. 57; 45 C. J. 1108, 1117, sections 680 and 694 “Negligence.”) The judgment of the lower court is affirmed. Mr. Justice Morris concurs.