motion was denied. The same question which was presented on the motion for a nonsuit was also raised in other ways upon the trial. It is necessary to discuss that question but once. It is this: Do the facts, as above recited, make out a case against the defendant, the city of Butte, for negligence in allowing the trap and doors to exist and be operated in the sidewalk, as above described, which should have been submitted to the jury? The further matter of whether this question was properly submitted will be considered later in this opinion, upon the examination of the instructions.

One ground of the motion for a new trial was that there was no statute in this state making municipal corporations liable for injuries such as plaintiff complains of. This proposition, however, was, upon the argument, abandoned by the appellant. Sullivan v. City of Helena, 10 Mont. 134, 25 Pac. 94. The appellant argues that the city of Butte has no right to prevent the reasonable use of the sidewalk by an abutting owner, for if it did so there would be no ingress or egress for such cellars as that described in the complaint, and that the property rights of such owners would thus be confiscated. Appellant's further argument is that, as the city. cannot prevent such reasonable use, it is therefore not liable in this case. But no such proposition is presented in the case at bar. It is not conceded that the use of this trap was a reasonable one. The question in the case was the allowance by the city of the maintenance of such trap, which was alleged to be a negligent and careless and dangerous condition of affairs. The case at bar is not such a one as City of Lafayette v. Blood, 40 Ind. 62, cited and relied on by the appellant. In that case an 18-inch coal hole in the sidewalk was open for a few moments, to put in coal, and the plaintiff, a child, fell in. There was a finding in the case that there was no defect in the construction of the sidewalk and coal hole. There is not such a finding in the case at bar, where the evidence showed that the opening in the sidewalk occupied about seven-tenths of the width of the whole walk, and was itself of a width which would require a man to run, in order to clear the chasm when open. Furthermore, no barriers were constructed in the doors or opening. The ordinary method of using the doors was to lay them flat on the sidewalk. The city authorities knew all of these facts. They knew of the existence and the nature of the trap, and the method in which it was built, to be used as above described. These things they permitted, when it was the duty of the city to keep the sidewalks safe for travel. By reason of the existence of this trap, and by reason of its being used on December 20th as the nature of its construction permitted and suggested, if, indeed, they did not intend that it should be used, the plaintiff was injured. Negligence is a ques

tion of fact for a jury. If there be clearly no negligence, the court may so determine, and grant a nonsuit. We certainly shall not hold in this case that, by the facts shown, it clearly appeared to the district court that there was no negligence by the city, defendant. We are of the opinion that it was proper that the case should go to the jury. As to the city's liability in permitting the careless and negligent use of the sidewalk, see Sullivan v. City of Helena, 10 Mont. 134, 25 Pac. 94; Barnes v. District of Columbia, 91 U. S. 540; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990; 2 Dill. Mun. Corp. 1023; 3 Cooley, Torts, p. 625; Jones, Neg. Mun. Corp. § 57; City of Indianapolis v. Doherty, 71 Ind. 5; Barstow v. City of Berlin, 34 Wis. 357; City of Galesburg v. Higley, 61 Ill. 287; Smith v. City of Leavenworth, 15 Kan. 81; Davenport v. Ruckman, 37 N. Y. 568. By adopting this view as to the motion for a nonsuit, we also dispose of the objections to those parts of the instructions which, in effect, express the same view of the district court as the court, by necessary implication, expressed in denying the motion for a nonsuit. We are satisfied that the instructions generally, in this respect, fairly and clearly submitted to the decision of the jury the question of negligence. They will be quoted below, and some particular objections to some of them will be specially noticed.

Another matter presented by the appellant is that the city authorities had no notice that the trapdoors were opened at the time the accident occurred. This is true, as noted in the statement of the evidence which we have made above. The question, therefore, thus presented, is this: If the city has knowledge of, and permits to exist, an opening and trapdoors in the sidewalk, which the city knows are dangerous whenever they are used in the manner for which they were built to be used, and ordinarily are used, then, in order to hold the city liable for injuries occurring by such use of such a dangerous opening, must it be shown that the city has knowledge that the dangerous thing is used at the particular time when the aceident occurs? We think not. We are of the opinion that to so hold would be wholly unreasonable and illogical. If the dangerous thing exists for a given use, the city permitting it to so exist for such use, the city must presume that it will be so used. These trapdoors and this opening, in this case, were for a given use, and the city knew of that use; and the city certainly cannot avoid liability by demanding that it be notified every time the dangerous thing is put to the use intended and contemplated by its existence and construction. Smith v. City of Leavenworth, 15 Kan. 81; 2 Dill. Mun. Corp. § 1027, note, and cases cited. It is said by Judge Dillon, in the note last cited: "If the defect arise otherwise than from faulty structure, and from some act other than the direct conduct

of the defendants or their servants, and be a recent defect, it is generally necessary to show that defendants or their servants had knowledge thereof, or were negligently ignorant of it." Numerous cases are cited to sustain the text. But in the case at bar the defect did not "arise otherwise than from faulty structure." The faulty structure was the dangerous element. Nor was the defect "recent." It belonged to the structure. The defect did not arise "from some act other than the direct conduct of the defendant." The direct conduct of the defendant allowed the defect to exist. The circumstances, as noted by Judge Dillon, did not exist in this case which would require any special knowledge to be brought to the defendant city.

re

It is charged in the answer of the defendant that whatever injuries plaintiff ceived were by reason of his own contributory negligence. About the only evidence in this respect, which is now claimed to show contributory negligence, was the testimony tending to show that the plaintiff was nearsighted. Upon this subject the defendant asked the following instruction (No. 9): "You are instructed that where a shortsighted person is injured in a public place, where sight is ordinarily required, that the shortsightedness of the person injured does not of itself establish contributory negligence, as a matter of law. But the shortsightedness of the person injured may be considered by the jury, if the fact of the shortsightedness of the plaintiff appears from the evidence in the case, upon the question of due care, and as an evidence of contributory negligence; and if it appears from the evidence that the defect of sight, coupled with exposure to danger, was the cause of the injury complained of, which otherwise would not have occurred, then and in that event the jury will be justified in finding that the plaintiff was guilty of contributory negligence, and, if you so find from the evidence that the plaintiff was guilty of contributory negligence, you should find a verdict for the defendant in the action." This instruction was by the court refused. We think that this was no error. The fact of the nearsightedness is certainly not of itself evidence of contributory negligence. Davenport v. Ruckman, 37 N. Y. 568; Barstow v. City of Berlin, 34 Wis. 357; Beach, Contrib. Neg. §§ 396, 397.

Appellant contends that instructions 2, 3, 4, and 6 are inconsistent with instruction No. 11. Those instructions are as follows: No. 2, given: "The jury are instructed that if the city authorities knowingly permitted a person to occupy, open, or obstruct the sidewalk, it is the duty of such authorities to use all reasonable care and precaution to see that the person so permitted properly guards and protects such opening or obstruction; and, if the city authorities negligently fail to perform such duty, the city would be liable to one who is injured by v.39p.no.2-19

reason of such opening or obstruction, if he were himself at the time using ordinary care for his own safety." No. 3, given: "The jury are therefore instructed that in this case, if they find from the evidence that the city authorities knowingly permitted a person or persons to occupy or open such sidewalk at the place in question, and negligently failed in their duty to use all reasonable care and precaution to see that the person or persons so permitted properly guarded and protected such opening or obstruction, and that such opening or obstruction was not properly guarded or protected, and that by reason thereof the plaintiff was injured, and was at the time in the use of reasonable care for his own safety, you should find for the plaintiff." No. 4, given: "You are instructed that if you find from the evidence in this case that the city of Butte permitted a cellar way or area way to be constructed or maintained under the sidewalk of Main street at the place alleged in the complaint, and that the said cellar way or area way was not guarded, except by trapdoors, and was dangerous for persons traveling on said sidewalk when such trapdoors were not closed, or one of them was not; and if you further find from the evidence that the city permitted the persons owning or occupying the adjoining lot, or persons acting under them, to open or close said trapdoors, or either of them, at their option, at or about the time alleged in the complaint, and that the said trapdoors, or one of them was open, and that the plaintiff, without fault on his part, fell into said cellar way or area way, and was thereby injured,-then you shall find for the plaintiff." No. 6, given: "You are instructed that if the mayor and the street commissioner of the city of Butte, or either of them, knew prior to the time of the alleged injuries to the plaintiff that persons were in the habit of opening or closing, at their option, trapdoors in the sidewalk at the place in question, and that said trapdoors, when open, left a dangerous place in the sidewalk (if you find from the evidence that there were such trapdoors, and that such persons were in the habit of so opening and closing the same, and that the place was dangerous when the doors were open), and that said officers had such knowledge for a length of time sufficient to enable them to put a stop to the practice, or to adopt proper precautions to insure the safety of persons traveling on the sidewalk, and did not interfere, or adopt such precautions, and that such persons were allowed to continue such practice, then you will find that the city permitted the existence of the trapdoors, and the opening and the closing of the same by said persons at the latter's option." No. 11, given: "You are further instructed that notwithstanding the jury may believe from the evidence that the sidewalk, at the time of the alleged injury, was defective, yet this

alone would not be sufficient evidence of negligence on the part of the defendant. In order to charge the defendant with negligence, it must appear from the evidence, not only that the sidewalk was defective at the time of the alleged injury, but it must further appear that such defect was actually known to the city, through some of its officers, agents, or servants, or that the defect had existed for such a length of time prior to the alleged injury that the city, if exercising ordinary diligence, would or should have known of the defect." These instructions are consistent, and we are of the opinion that they state the law correctly. See authorities above cited. The instructions, stating it briefly, say to the jury that if it appears from the evidence that the alleged dangerous defect existed in the sidewalk, and that the city knew of it and permitted it, and plaintiff was injured thereby, without his own fault, the city was liable. It is perfectly apparent that there was evidence, as above noted, to justify these instructions. The instructions refused, on the other hand, present a different view of the law, and one inconsistent with those given. We are of the opinion that there was no error in giving or refusing the instructions.

Another ground of motion for a new trial was "excessive damages awarded plaintiff by the jury in said cause, appearing to have been given and assessed under the influences of passion and prejudice." Code Civ. Proc. § 296. It is argued by the appellant that the evidence does not at all justify a verdict in the amount of $4,500, and that therefore, it must be concluded that the same was given under the influences of passion and prejudice. The defendant's left arm was broken and bruised. The physician who treated him testified as follows: "There is some atrophy of the muscles of that arm,-some wasting. There has been more or less of a thickening taken place about the joint where the frac ture was. The fracture was the head of the bone of the arm. There was a separation of the head of the bone over the shaft. The head was broken from the shaft. During the healing of the fracture, if everything is favorable, the callus is absorbed. That is not wholly true in this case. I don't think that the plaintiff's arm will ever be a perfect arm, or as good as it was before it was injured. At present there is some enlargement of the bony tissue, interfering with the freedom of motion. He could do some manual labor with it. He would be a person- If I was rating him, from the experience I have had as an examining surgeon for the government, I would rate him three-fourths totally disabled. He was under my treatment for about six weeks, when he was coming regu larly to my office. The injury was of a painful nature. Persons injured in this manner would necessarily suffer some pain. Generally, I would say that they would suffer pain for some time. During the healing process

there would not be as much pain as when attempting to gain motion in it. There would be more pain in it then. I examined him at different times for three or four months. In a degree, a man might use that arm. He might use it to eat with, or to hold his fork, probably. When I say three-fourths totally disabled, that is three-fourths total disablement of the entire person. As to the ratio of disablement of that arm alone, there is no such rating. I have had no experience in such rating as to a particular limb. Rates are not given in that way. It takes the percentage from a man's capability of earning a livelihood by manual labor. I should judge he was 50 years of age. He may be 60. He may not be over 40. He has the appearance of premature age. I think, under difficulties, that this man might be able to hold, if he was right-handed, one end of an ax, and split his own fuel for his house, if he was keeping house. He might be able to do most any kind of manual labor. He could do a certain amount of work, probably might be able to do as much as one-fourth as much as a man would do, but it would be under difficulties. No kind of labor would be benefiIcial to him, that would cause motion in that joint. I required him, for months, to go through a very severe pain, trying to break up the adhesion in the joint by extending his arm, and working it up the side of the house, or other exercise." The doctor also said: "He could wield a pick in a mine, in his left hand, as I said, and use his other arm,-depend upon his right, mostly. He could do a certain amount of work." There is some other testimony by the doctor as to gymnastics and parallel bars, but we think that this was simply some humor between the witness and the counsel. The plaintiff himself also testified to the injury. This is all the testimony there was, as a basis for finding the amount of damages. In the case of Kennon v. Gilmer, 5 Mont. 257, 5 Pac. 847, there was a verdict for $20,750. The injury there was the loss of a foot. The amount of the verdict was greater than could have been given to the personal representatives of the injured person, if he had been killed. The court cut the amount down to $10,750. In rendering their decision, they quote the following case of Railroad Co. v. Hand, 7 Kan. 393, as follows: "Of course, courts are reluctant to interfere with the verdicts of juries on the ground of excessive damages; but to uphold them where a great wrong has been done would, as a precedent, be doing an infinite wrong to the community. The rights of parties are submitted to the unbiased judgment of juries, not to their passions or prejudices; and, where it is apparent that these feelings have entered into and influenced their decision, it becomes the duty of the court to see that a tribunal organized to administer justice is not perverted from its proper purpose to become the instrument of oppression and injustice." The question,

It

therefore, is, in the case at bar, is it apparent that the verdict was rendered under the influences of passion and prejudice? We are of the opinion that there is not sufficient in the record to show that such sentiments entered into the consideration of the jury. is argued that, when the doctor testified that the plaintiff was three-fourths totally disabled, he meant that this disability came partially from causes other than the injury to the arm. But it appears that the doctor was testifying as to the injury to the arm only, and the fair conclusion from his testimony is that the injury to the arm caused this three-fourths disability. He says he does not rate the arm as a separate item, but he evidently means to say that by virtue of the injury to the arm the whole physical capacity of the man is reduced to one-fourth of a whole man. There is no testimony whatever in the case to contradict that of the doctor It is not and the plaintiff in this respect. shown that plaintiff was suffering from any disability prior to the time of the accident. The jury, under our system of jurisprudence, is the tribunal to determine the amount of damages which should be awarded to a plaintiff, if it is shown that he is injured by the fault of the defendant. Under our statute the ground for a new trial, in this respect, is excessive damages given under the influences of passion and prejudice. It is not claimed by the appellant that there is anything whatever in this case to show passion and prejudice, beyond the fact that a verdict was given for a larger amount than the appellant thinks the evidence justifies. But as to that, as above remarked, the jury are the judges. We do not think that the showing in this case authorizes us in granting a new trial, or in reducing the verdict in case the respondent did not accept a new trial. 2 Thomp. Neg. p. 1269, § 66, and cases cited. In a similar matter the supreme court of Massachusetts said: "In regard to the first reason assigned for a new trial, we are of opinion that the damages assessed are not so excessive and unreasonable as to warrant the interference of the court in a matter which is peculiarly within the province of the jury to determine. In all cases where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury, and not the opinion of the court, is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case."

Worster v. Proprietors, 16 Pick. 541. We have reviewed all the errors assigned in this case, and are of the opinion that the judgment and the order denying a new trial must be affirmed, and it is so ordered. firmed.

Af

PEMBERTON, C. J., and HUNT, J., con

cur.

1. In replevin a denial in the answer that defendant took "and" carried away the goods described in the complaint is bad as a negative pregnant.

2. It is error to render judgment on the pleadings where defendants deny plaintiff's right to the possession of the goods, though the other denials in the answer are defective.

Appeal from district court, Deer Lodge county; Frank H. Woody, Presiding Judge. Replevin by Bach, Cory & Co., Limited, against the Montana Lumber & Produce Company and others. Judgment was rendered for plaintiff on the pleadings, and defendants appeal. Reversed.

Brazelton & Scharnikow and Geo. B. Winston, for appellants. E. D. Weed, for respondent.

DE WITT, J. This is an appeal from a judgment rendered on the pleadings. The action was in replevin. Upon complaint and answer filed, the plaintiff moved for judgment on the pleadings, upon the following grounds: "(1) That there is no denial in defendants' answer of the allegations in plaintiff's complaint that the defendants took and received the lumber in said complaint described. (2) That defendants' answer admits that the value of the lumber taken by defendants, as alleged in plaintiff's complaint, was 618 dollars; and plaintiff should have judgment for such amount, with legal interest thereon from the date of conversion. Elbert D. Weed, Atty. for Plaintiff." This motion was granted. It is true that there was no denial in the answer that defendants took and received the lumber which was the subject of the action. The denial of the defendants is that they did not take and carry away the lumber, etc. denial is in the conjunctive. A denial that defendants took and carried away the goods is not a denial that they took the goods, or a denial that they carried them away. Boone, Code Pl. § 61, and cases cited; Harris v. Shontz, 1 Mont. 212; Toombs v. Hornbuckle, 1 Mont. 286; Power v. Gum, 6 Mont. 5, 9 Pac. 575.

The

But there is a denial in the answer of another material allegation of the complaint, which denial raises an issue. The complaint alleges that on a certain day the plaintiff was the owner and lawfully pos"The right to the posşessed of the lumber. session of personal property is essential in the plaintiff in an action for claim and delivery." Laubenheimer V. McDermott, 5 Mont. 517, 6 Pac. 344. See, also, Cobbey, Repl. § 784. This essential allegation was made, as we have seen, in the complaint. This essential allegation of the complaint was denied in the answer, in the following

language: "The defendants deny that the plaintiff was, at the time mentioned or at any other time, the owner or lawfully possessed of any lumber of the description given in the complaint, or of the value named therein, or of any other value, at the mill yard of Coffey and Brennan, in the county and state aforesaid." Here the denial is in the disjunctive, which is proper. See cases last cited. It is denied that the plaintiff was the owner or lawfully possessed of the lumber. This denial raised the material issue as to plaintiff's right of possession. There being an issue raised, judgment on the pleadings was error, and the same is therefore reversed. Reversed.

PEMBERTON, C. J., and HUNT, J., con

cur.

(15 Mont. 347)

In re DAVIS' ESTATE. (Supreme Court of Montana. Feb. 18, 1895.) WILL CONTEST-DEFAULT-OPENING-ABUSE OF DISCRETION.

Two contests against the probate of a will were brought by different heirs. The points involved in each were substantially identical, and both sets of contestants were represented by the same counsel in Montana. One of the contests was brought to trial, which lasted over a month, and resulted in a disagreement of the jury. A stipulation was then entered into to try this contest again on a day named. About six weeks before the time fixed, the Montana counsel declined to act any longer for the second contestants, on the ground that their interests had become adverse to the other contestants, and so notified their counsel in New York, where these contestants resided. After several ineffectual attempts, the New York counsel succeeded in retaining another Montana attorney about a week before the day fixed for the trial of the first contest, but he was engaged in the trial of another case; and it was utterly impossible for him, with the time at his disposal, to familiarize himself with the claims of his clients, and the testimony necessary to support them. When the first contest was called for trial, a stipulation for its continuance, and to sever it from the other contest, was filed. The second contest was then called for trial, and the Montana counsel asked for a continuance on the ground that he had relied on the other contest being tried first, that his clients were in Massachusetts and New York, that their New York attorneys were not present, and that he had not testimony on hand, and did not know where to get it. The motion for a continuance was denied, and the proponents of the will asked for a dismissal of the contest. The Montana attorney's offer to dismiss the contest "without prejudice" was declined; and he thereupon, in the interests of his clients, withdrew his appearance, and the contest was dismissed as for a default. Held that, though the application for a continuance may have been properly denied, and though the contestants and their New York attorneys may have been guilty. of negligence, yet their negligence was excusable, since they relied on the other contest being brought to trial first, and were not to blame for not knowing of the stipulation to continue that contest, and keep it distinct from theirs; and that, therefore, they were entitled to be relieved from the default, under Code Civ. Proc. § 116, relating to excusable neglect, and a refusal of the lower court to open the default was such an unwise exercise of discretion that, in

furtherance of justice, a reversal would be ordered. Pemberton, C. J., dissenting.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

On contest of the proposed will of A. J. Davis, deceased, by Harriet R. Sheffield and Henry A. Davis. The contest was dismissed as for a default, and from an order refusing to open the default the contestants appeal. Reversed.

A. J. Davis died at Butte, Mont., March 11, 1890. His estate was of the estimated value of about $4,000,000. He left certain heirs at law, among whom was Sarah Maria Cummings, a sister; Henry Root and Ellen S. Connel, children of a deceased sister; Harriet R. Sheffield and Henry A. Davis, children of a deceased brother. Just after the death of the decedent, upon the belief that he had died intestate, several parties in interest applied for letters of administration. July 24, 1890, while these applications were pending, John A. Davis filed an instrument purporting to be the will of the decedent, and praying that it be admitted to probate. August 9, 1890, Henry A. Root and Maria Cummings and Harriet R. Sheffield and Henry A. Davis filed objections to the admission of the said alleged will to probate. The main grounds of these objections were that the document filed was not the last will and testament of the said A. J. Davis, deceased; that the said A. J. Davis, deceased, did not declare the same to be his last will and testament; that the witnesses to said alleged will did not sign the same at the request of the said A. J. Davis, deceased; and that the said instrument was fraudulent and spurious, and that the signatures thereon were forged. Upon August 12, 1890, a special administrator was appointed, who is yet serving. On the 19th of August, 1890, John A. Davis, proponent of the will, demurred to the objections filed by Root and Cummings and to the objections of Sheffield and Davis. Upon August 23, 1890, these demurrers were argued, and on September 2d sustained. Root and Cummings, as contestants, filed amended objections to the probate of said alleged will, and on the 3d of October the proponent filed his answer. A trial was subsequently had in July, 1891, upon the contest of Root and Cummings. This trial lasted over a month, and on September 9th the jury, being unable to agree, were discharged. January 24th, 1893, the proponent of the alleged will, John A. Davis, died intestate. John E. Davis, his son, was duly appointed administrator of his estate. Upon April 1, 1893, said John E. Davis secured an order reviving the Root and Cummings contest. The Sheffield and Davis contest was still pending. The proponent, having only demurred to certain of the ob jections of the said Sheffield and Davis, ought to have answered to other objections. but did not. Nothing was done in the Shef field-Davis contest until May 13, 1893, upon