The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-02-20
The City Gets a New Trial in the
Suit Of W. F. Whitaker for
Damages.
Contributory Negligence OF the
Driver Acts Against the
Injured Man.
surety on = Contractors bond Held LA
bic for Hts Failure to Fay for
Labor aud Material.


Of Will +. whitaker. plaintiff and respond
ent. versus the City Of Helena, defendsn
and appellant Whitaker brought suit 9
recover damages for personal injuries sus
tanned by him by being thrown from
buggy in the strsoiL Among other thing
the complaint alleged that on Aue. 30 lSJJ
the civ wrongfully and negligently suthor
lied an permitted q show 20 BE- maintained
and conducted in a tent OF canvas eovere'
wagon. on Grand street; that the show wa
such an obstruction IS 20 render trave
along the street unsafe and dangerous, an'
vas of such character as 90 brighten gentl'
and well broken horses; that on Aug. 30 b.
was riding IN a buggy drawn hv safe anS
gentle horse. which was being driven will
due care and caution along Grand street
when the horse without any fault or neRli
csnce OF his, became frightened at she show
tent OF wagon. became unnanaCesble. and
IAN away. upsetting the busgJ, throwing
him 20 the ground with great force, whereby
he was greatly injured; that in the Lawful
transaction Of his business be had nsees-
sarily 20 Pass along Grand street. The
allegations Of the complaint are denied by
the answer. The case vas tried IN she dis
trict oourt Of Lewis and Clarke with = jury
and resulted in a verdict for Whitaker for
$lOOO. new trial was asked and denied,
and an appeal taken.
The suprems court says; The evidence
clearly shows that Whitaker. at the time OF
tho accident, was riding with james s.
Dunn, who oWnei the buggy and horse.
and who was driving Dunn. 10 seems was
on his way to lunch. and invited Whitaks-,
who lived in the same part Of the city, TO
ride with him, "a il seems he did almost
every day. The evidence does not show
that plaintiff knew Of the existence Of she
alleged distraction 90 travel on .he street.
Bu, Dunn swears that be knew Of IT, Dunn
was at the time an alderman OF the city. lt
appears from the evidence that the acci-
dent occurred as about one o'clock y. m.
AZ noon OF that day there was a meeting Of
the city council. Dunn was az that meet
nesting, and In an earnest aud excited
manner called the attention of the council
90 the fact that this show ia the tent OF
wagon was doing business on Grand street.
and also called attention so its dangerous
character; that the mayor stated that be
would see 30 its removal al once; thatthere-
upon the council adjourned. and that be
went Immediately 10 Edwards street. got
his horse and buggy, drove 20 Main street
took whitaker into his haggy. as be was in
the habit OF doing every day. and started
MP Grand street. and in attempting 90 pass
the tent or wagon the accident happened;
that the tent or wagon was on one side or
the street, and pile Of rock the city was
using Was on the opposite side; that IN al
tenn tinR to pass between the tent or wagon
and she pile OF rock. she horse became
frightened. ran the buggy over the rock
pile turning 10 over and throwing the occu-
pants out.
t.rhf. .-fH.r.. - n-rr 4. Z, - -,
questioned. That be knew the DISTRACTED
and dangerous condition Of Grand street
az 10 was in such condition. when he drove
upon IT, IL beyond dispute. Unier this
state Of facts could Dunn recover II be
were prosecuting this suit against the city
IL he could NOT recover. can this plaintiff,
who was voluntarily riding wish him In HIS
buggy. recovsrf Was Dunn guilty Of such
oontTibutary negligence as would defeat
his right 30 recovery, when be drove upon
the street, knowing the condition the eof2
IL 90. was his negligence imputabe to she
plaintiff so ss 70 defeat recovery on his
partP'
The supreme court quotes a number OF
authorities on the point and continues:
These AuthO tiles all hold that II the neg
ligence Of the party injured, o. OF his
driver. which IL imputsd 10 him. materially
contributed TO the injuries, be cannot re-
cover, although the party complained Of
has not been Tree from negligence. Ia the
case al bar II seems clear that Dunn was not
only guilty Of eOntributOrY negligence, but
that he was reckless In driving into q street
which be swears be knew 80 be dangerously
obstructsd. HIS negligence must be held
as imputable 90 plaintiff IL Dunn could
not recover undor the facts aud oifcum-
stances OF she case, neither could Whit
aker, although the city may have been
guilty Of negligence on its art. which It Is
not necsssa IN this case 20 determine.
The court below recognized the law ns
stated above as applicable 10 this ease, ana
30 declared II 30 the jury IN She insruo-
sions given. But the verdict seems 70 us 20
have been rendered IN disregard Of the law
as given by the court, IS well as Of tie eyi-
dence In the case. We think the court
should have granted. for these reusous tho
motion Of the defendant for new trial.
The judgment - thereto reversed and
Gauss remsnded for new trial" Opinion
by Chef Justice PrmbeTtOn.
Another decision Was In tie cna3 OF W NJ
Cockrll respondent. W. l.. a. DAVE. John
kennsr and j. ". Cornelius appellants.
Appeal from Cascade county. CockriI
eute ed into n contract with Davie. where
b. tue latter agreed, for a confederation.
20 provide and furnish al material and
do ali iaoor, necessary 10 the erection and
cOmplstion Of a two story frame dwelling
house" for Cockril. according 20 certain
plans and spec ihcatons made part OF tb-
aci, bond y 3 executed ~ ltsuner On 4
Cofnsliu- for s. zoo. Ihs building va.
constructed by DAVE. aud Cockrill paid
him 4 considerable ortion Of the contract
price, but Davio failed TO Day tor certain
labor ana materials. ua-1 in constructing
the roof Liens vsrs applied and en-
forced against the property, which Coekriu
was obliged 20 pay. Cuckflil undertook
90 recover from Davie and his bondsluen
tbs amount be was thus compelled 20 nav
The trial resulted IN judgment aHalust
hsnner alone TO 2LOlL54. aud he appealed
from this. a. we'll a. from an order OVER
ruling bis motion for = new trial u was
claimed that bond was void because Davir.
she principal. did not slgl u along with the
auretiea. Eut after much confederation II
tha eubiscf. ami the authorities. the su-
RENE court says 70 cannot sustain that
view. 10 was further conteudad that be
cause there was no provision 10 the build
Ing contract speedily fsqurlng Dave 10
pay 10 ths labor and material put into the
construction % tie building. his Obligation
was fulhlled BY IA nishinR tie same. aud
was not broken ~ bis failu 90 pav there
for. aud lie wing ths building. and also the
lot on which 70 was erected. subject 20 sale
% satisfy demands for materials and labor.
4 his Interpretation Of the contract tho
supreme court thinks Is untenabIe IL saw.
when DAvie merely obtaiaed and used a. q
material, leaving upon Cockrill the bu den
Of paying therefor, be fell short Of futnlth-
ing the material, us the contract called for.
10 vas a.so contendsd that Cockrill
should have withheld payment OF ths in
stalmsnts Tor Tue buildiug, until fecsiptsd
bills for ell labor aud material used were
delivered 20 him. lac supreme conrt
finds no force Ia this proposition when
considered IN the frht OF the fsrts .pf 49,.