Smith v. Bonner

HONOEABLE EOT E. AYEES, District Judge, sitting in place of ME. CHIEF JUSTICE BEANTLY, disqualified, delivered the opinion of the court. Defendant below, appellant here, owned a tract of land in Missoula county approximately 300 feet square, adjacent to the city of Missoula, upon which her residence was located. In the year 1890 or 1891 she dug a cesspool near the eastern boundary of the tract. The cesspool was five or six feet in diameter and twelve to fifteen feet deep. About six feet below the surface of the earth thick boards were placed over the lower portion thereof, and the portion above the boards was filled with dirt so as to be level with the earth except for a ventilation pipe. The next year Canadian poplar trees were planted around the premises, one of which was planted over the cesspool slightly to the west of the center of it. In 1898 this tract of land was included within the limits of the city of Missoula and designated as a block, with Eonald Avenue paralleling the east side and including the land upon which the cesspool and tree were located. After the dedication of Eonald Avenue, defendant continued to use the cesspool until April, 1918, when a new one was constructed just inside her block line. The boards in the old one had decayed, permitting the earth above them to cave into the cavity below, leaving the roots of the tree unsupported so far as they extended across and down into the excavation. The dirt and gravel taken from the new cesspool were placed in the old one to the extent of making the surface higher than the surrounding ground; however, it was not tamped nor was it settled with water or by any other means except the “poking” of the same with shovel blades. The sewerage pipes from the house were then connected with the new cesspool, and the placing of the dirt and gravel in the old one ended defendant’s relation with it, and it remained in the condition as left by her until the 10th of the following July, when the tree growing over the cesspool was blown over, striking and killing Merrick J. Smith, who was driving a delivery [576] wagon along Ronald Avenue and evidently drove under the tree seeking shelter from the storm then prevailing. This action was prosecuted against defendant by the heirs of deceased for negligently having and maintaining the cesspool and tree in the condition described, and negligently cutting the roots of the tree in digging the new cesspool. They recovered a judgment for $5,000. An order was made overruling defendant’s motion for a new trial, and from the judgment and this order these appeals are taken. There is no substantial dispute on the material facts. .The defense was that the duty of handling, rehabilitating or disposing of the tree rested solely and entirely with the city of Missoula; that there was no negligence on the part of the defendant; that deceased’s death was caused by an accident which could not have been foreseen—an act of God; and that decedent was guilty of contributory negligence in failing to pursue the used and traveled portion of the street. The cesspool was dug and the tree planted by defendant upon her own property, which later became a public street, and for twenty years thereafter she maintained the cesspool for her private use. Under such facts, defendant’s contention that she had no authority over the tree growing in the street is untenable, if her negligent use of the street in connection with the cesspool over which the tree grew, or the cutting of the roots, was the proximate cause of the tree falling. The acts of negligence alleged are independent of each other, and it is not necessary to prove all. A recovery will be upheld upon proof of one of' them, if the act proven is shown to be a proximate cause of the injury. (Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Moyse v. Northern Pacific Ry. Co., 41 Mont. 272, 108 Pac. 1062; Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189, 100 Pac. 971.) The right of an abutting owner to the use of a street is subordinate to the right of the public, and the use thereof by an abutting owner imposes upon him the duty to exercise due care that his use shall not become dangerous to anyone using the [577] street as a public thoroughfare; and hence, when an individual passing along the street, in an ordinarily prudent manner, sustains injury as a result of the negligent use of the same by an abutting owner, a private action accrues to him against the person so using the street. (Hayes v. Michigan Central Ry. Co., 111 U. S, 228, 28 L. Ed. 410, 4 Sup. Ct. Rep. 369 [see, also, Rose’s U. S. Notes]; Weller v. McCormick, 52 N. J. L. 470, 8 L. R. A. 798, 19 Atl. 1101; 28 Cyc. 1439; Cooley on Torts, 626.) Having determined that plaintiffs could properly institute an action of this character against defendant, we shall consider together the next two theories of the defense, namely, lack of negligence on the part of defendant and the act of God. We shall not consider the proposition of maintaining -a nuisance as urged by plaintiffs, except so far as it aids in determining the question of negligence (Robinson v. Mills, 25 Mont. 391, 65 Pac. 114; 20 R. C. L., sec. 3, p. 381), for it was not pleaded, and the case was not tried on that theory, hut on the theory of negligence. If the tree withstood the ordinary wind and rain storm and was blown down by an extraordinary .and unprecedented storm which would have blown it over if thé ground under it had been as nature made it, that would be an act of God, and the defendant would not be liable. If, on the other hand, the tree was blown over by reason of a prior or coincident negligent act of defendant, she is liable because her act was causa sine qua non. (Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130; Mulrone v. Marshall, 35 Mont. 238, 88 Pac. 797; Birsch v. Citizens’ El. Co., 36 Mont. 574, 93 Pac. 940; Frederick v. Hale, supra; Lyon v. Chicago, M. & St. P. Ry. Co., 45 Mont. 33, 121 Pac. 886; Holter Hardware Co. v. Western M. T. G. etc. Co., 51 Mont. 94, L. R. A. 1915F, 835, 149 Pac. 489.) While the windstorm of July 10 was an unprecedented one at Missoula, yet there is no evidence that trees of a like kind and size rooted in the unmolested earth were blown over or disturbed so far as their earthly anchorings were concerned. [578] The tree in question was not uprooted. The roots unsupported by firm earth gave way at the instance of the storm, and the tree slipped into the cesspool space which had been filled with loose dirt and gravel, and fell to an angle of approximately forty-five degrees. These' physical facts, which speak louder than words, together with the additional fact that no other trees of a like character suffered the same calamity, would convince the ordinary person that it fell because it was founded upon insecure earth. Hence we must conclude that the tree would not have fallen had it not been for the cavity under it, which had been filled with loose dirt and gravel, and it necessarily follows that the cause of its falling was the windstorm and the negligence of defendant. This being so, defendant’s negligence is determined to be the proximate cause of the injury under the well-recognized rule that, where two causes contribute to an injury or death, one of which is the negligence of the defendant and for the other of which neither party is responsible, the defendant is liable, if the injury or • death would not have occurred but for his negligence. (Holter Hardware Co. v. Western M. T. G. etc. Co., supra; Lyon v. Chicago, M. & St. P. Ry. Co., supra; Frederick v. Hale, supra.) On the last defense—that of contributory negligence—coun sel insists that the trial court erred in refusing his offered instruction to the effect that, if the deceased voluntarily deviated from the traveled track of the road, for his own convenience, and was killed as a consequence thereof, he would be guilty of contributory negligence and recovery could not be had. In support of this contention counsel urged Howard v. Flathead Independent Tel. Co., 49 Mont. 197, 141 Pac. 153. In that case Howard, when injured, was, without excuse, off the graded portion of the highway which had been prepared for use and was in good condition. With such facts before it, this court announced the rule that “When a sufficient portion of the public highway is graded or otherwise prepared for travel, the invitation to the public to use the highway is confined to the prepared or used portion, and the duty then de [579] volves upon the traveler to keep within that portion prepared for his use to which his invitation extends, and for injuries received outside of that portion he cannot recover, unless he can excuse his presence at the place where he was injured.” No such state of facts as called forth the above rule exists in the instant case. Here we have a street within a city, presumably its entire width, from curb to curb, prepared for travel. No evidence was offered to rebut this presumption or to show that deceased was off the portion of the street prepared for travel, if any limited portion was so prepared. The instruction was properly refused. We find no error in the record. The judgment and order appealed from are affirmed. Affirmed. Associate Justices Cooper, Holloway and Galen concur.