The complaint alleges: That the accident complained of occurred on October 3, 1941, on Beverly Hills Boulevard, an improved public street in Billings, which street was then in a muddy condition; that in walking from an automobile stopped in said public street to the sidewalk in said street, plaintiff stepped upon some boards or planks in the street; that the boards covered an excavation in the street six feet in depth; that such boards were loose and that as plaintiff stepped upon them the boards slipped and plaintiff fell into the excavation receiving the injuries which she specifically describes and for which she brought this action for damages against the city; that on November 8, 1941, being within sixty days after receiving such injury, plaintiff caused to be filed with the city clerk a written notice of said injuries which notice was on that day presented by said city clerk to the city council of the defendant city, said council then being regularly convened.
The complaint also alleges that on August 2, 1941, a written permit was issued by the building inspector of the defendant city to one E.G. Balsam to construct a dwelling house at 306 Beverly Hills Boulevard; that Balsam, through William M. Willis, a contractor, commenced to construct the house; that Willis let a subcontract to Myron C. Burt, a plumber, for installing the plumbing and connecting same with the water main of the defendant city; that thereupon Burt entered into and upon the work of installing the plumbing and making connection with the water main of the defendant city and in doing so he made the excavation in the street in front of said Balsam premises and laid the water pipe therein from said dwelling to where connection is *Page 262 made with the water main; that Burt completed the work before October 3, 1941, but that he carelessly failed to close the excavation, or, reasonably to protect it by placing a secure protection and covering over it; "but instead negligently and carelessly covered said excavation by laying loose boards or planks over said excavation, and the said Myron C. Burt also negligently and carelessly failed to place signs, markers or signals of any kind at said excavation to warn persons of said excavation, and the said defendant having actual notice of said excavation, by reason of the facts aforesaid and the usage, custom and practice aforesaid, which constituted a permit for the said Myron C. Burt to open up, dig into, excavate or tunnel in said boulevard, and said defendant having had reasonable opportunity to close said excavation, or to reasonably protect the same by placing secure protection and covering over said excavation or by placing signs, markers or signals there to warn persons of said excavation, before injuries were received by plaintiff, as hereinafter set forth, said defendant negligently and carelessly omitted its duty to see that said excavation in said boulevard was closed by back filling, tamping or puddling of said excavation, as soon as possible after the completion of the necessary work of said excavation, or within a reasonable time thereafter, or at all, and said defendant negligently and carelessly omitted to see that said excavation was reasonably protected by placing secure protection and covering over said excavation, but instead negligently and carelessly permitted the said Myron C. Burt to cover said excavation by laying loose boards or planks over said excavation, and said defendant negligently and carelessly failed to see that signs, markers or signals were placed at said excavation to warn persons of said excavation, and as a proximate result of the negligence of the said Myron C. Burt and of the defendant, as aforesaid, the said plaintiff suffered and sustained the damages hereinafter set forth."
The complaint further alleges that before commencing the work or making the excavation, Burt, the plumber, in compliance with a city ordinance, on February 19, 1941, had posted a bond *Page 263 or undertaking with the defendant city to save the city harmless from damage or injury to persons or property by reason of Burt's failure to properly guard any excavation made by him in the city and by reason of failure, as soon as possible after the completion of the necessary work, to restore the street to as good condition as it was in the beginning; that said undertaking or bond was thereafter approved and accepted by the city council of the defendant city and that thereupon the plumber Burt was authorized and empowered to open up, dig into, excavate or tunnel in any of the streets, avenues, public places or alleys of the city of Billings for a period of one year from and after the 19th day of February, 1941, upon obtaining a permit therefor from the city.
The foregoing allegations, in my opinion, are sufficient to state a cause of action.
In McQuillin, Municipal Corporations, Vol. 7, section 2908, page 24, the author says: "To create a cause of action against a municipality due to a defective public way the elements are: (1) The duty to exercise ordinary care to keep its public ways in a reasonably safe and convenient condition for travel in the usual modes by day and night; (2) the violation of that duty, as evidenced by the unsafe condition of the public way at the place of the accident; and (3) the injury to the plaintiff." (See Cityof Woodward v. Bowder, 46 Okla. 505, 149 P. 138; McLaughlin v. City of Los Angeles, Cal.App. 1943, 140 P.2d 416.)
In Brennan v. City of Kalispell, 105 Mont. 547, 74 P.2d 6, 7, this court said: "In examining the complaint, we find the duty, the breach of duty, the specific acts of negligence, the proximate cause, and the allegations of damages suffered all directly and specifically alleged. The sufficiency of these allegations to state a cause of action on the grounds of actionable negligence for personal injuries is not open to doubt."
The injuries complained of in the Brennan case, supra, were suffered prior to the enactment of Chapter 122 of the Session Laws of 1937 termed the "notice statute." This Act of the legislature deals with two kinds of notice. The one kind of notice *Page 264 is that which the injured person or someone in his behalf must give to the proper city authorities "within sixty days after such injury is alleged to have been received or suffered." The complaint here fully alleges the giving of such notice.
The other notice mentioned in Chapter 122, Session Laws of 1937, is actual notice of the defect or obstruction, which notice is to be given before the happening of the injury or damage. It is not, however, necessary in all cases that the city receive actual notice of the defective condition in advance of the happening of the accident or the sustaining of the injury for liability to attach.
"If the defective condition is due to the act of the municipality itself or of its contractors or employees, no other notice of any kind, either actual or constructive, is necessary in order to render the municipality liable for damages proximately caused thereby." (City of Grandview v. Ingle, Tex. Civ. App. 1936, 90 S.W.2d 855, 856. See, also, Barry v.City of Butte, ante p. 224, 142 P.2d 571.
So too, actual notice of the existence of the defect is not required where as is here alleged the city had issued a permit or order or otherwise authorized another to enter upon and tear up a public street for his private use. (See Spiker v. City ofOttumwa, 193 Iowa 844, 186 N.W. 465, 467; Tabor v. City ofBuffalo, 136 A.D. 258, 120 N.Y. Supp. 1089; City ofDenver v. Aaron, 6 Colo. App. 232, 40 P. 587, 588.) In the last cited case the Supreme Court of Colorado, in speaking of the liability of a municipality, said: "* * * It cannot defend upon the ground of want of notice where the act is done by itself or by its authority. If it authorizes dangerous excavations to be made in its streets, either by contractors directly under it or by persons to whom license for the purpose is granted, it cannot unburden itself of its responsibility upon those by whom the work is done. If it permits others to tear up its streets, it is its duty to see that they do the work in a safe manner. It is immaterial what measure of control of the work it has reserved in itself; nor does its liability rest upon the doctrine ofrespondeat superior. Being charged with the care of its streets, it cannot relinquish its supervisory *Page 265 control of them; and, whether it places them in a dangerous condition itself, or permits others to make them dangerous, it is equally responsible. (2 Dill Mun. Corp. sec. 1027; Storrs v.Utica, 17 N.Y. 104 [72 Am. Dec. 437]; Russell v. Inhabitantsof Columbia, 74 Mo. 480 [41 Am. Rep. 325]; Haniford v. Cityof Kansas, 103 Mo. 172, 15 S.W. 753; Boucher v. City of NewHaven, 40 Conn. 456)".
"Primarily the city is charged with the duty of keeping its streets, including its sidewalks, in a reasonable safe condition for travel." (Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809, 812.) This obligation of keeping the streets in a reasonably safe traveling condition belongs to the municipality itself and is a continuous one which cannot be delegated nor shifted to another.
The majority opinion says: "The complaint contains no allegations of the exercise of care by the plaintiff." It is most elemental as well as fundamental and long recognized by this court: (a) That contributory negligence is a matter of affirmative defense; (b) that, being an affirmative defense, to be available it must be specially pleaded as such by thedefendant (Meisner v. City of Dillon, 29 Mont. 116, 124,74 P. 130; Gleason v. Missouri River Power Co., 42 Mont. 238,254, 112 P. 394); and (c) that the plaintiff was not required in her complaint to anticipate or negative possible defenses to her action. (Pryor v. City of Walkerville, 31 Mont. 618, 621,79 P. 240; McGinnis v. Phillips, 62 Mont. 223, 229,205 P. 215.) In the early case of Nelson v. City of Helena,16 Mont. 21, 22, 39 P. 905, this court said: "It is the doctrine of this jurisdiction that contributory negligence is a matter of defense, and that plaintiff need not allege or prove itsabsence." (Emphasis mine.)
The majority opinion from a mere reading of the complaint also finds that plaintiff, rather than going to the corner crossing to reach the sidewalk, "chose to walk on the boards over the excavation," and that her pleading affirmatively shows that it was her own lack of care, rashness and negligence in undertaking to walk where she did that was the proximate cause of her injury. I do not think that it is within the province of either the trial *Page 266 court nor of this court to adjudge and determine on the bare allegations of the complaint, with no answer filed and no evidence taken, that the plaintiff's conduct amounted to negligence or that such conduct was the proximate cause of the injury. In Bensley v. Miles City, 91 Mont. 561,9 P.2d 168, 171, this court said: "When two causes combine to produce an injury to a pedestrian on a city street, both of which are in their nature proximate, the one being a culpable defect and the other some occurrence for which neither party is responsible, the city will be held responsible, provided the injury would not have been sustained but for such defect." (Citing cases.) "Generally, the question of contributory negligence is one of fact for the determination of the jury." (Olson v. City of Butte, 86 Mont. 240,283 P. 222, 224, 70 A.L.R. 1352.) This court, on the complaint alone, certainly is in no position to say as a matter of law, that the plaintiff was guilty of negligence and that such was the proximate cause of her injury. Whether the excavation in the street was the proximate cause of plaintiff's injury was a proper question for the jury's determination. (Brennan v.Miles City, supra; Brunnabend v. Tibbles, 76 Mont. 288,246 P. 536.)
In Tyler v. City of Richmond, 168 Va. 308, 191 S.E. 625,627, the court said: "It was her duty to exercise ordinary care for her own safety upon the occasion in question. What amounts to ordinary care is generally for the jury to decide and depends upon the circumstances of each particular case. Ordinarily a pedestrian may assume that the sidewalk is unobstructed, certainly until he has some knowledge to the contrary. He is not bound to keep his eyes constantly fixed to the sidewalk."
In Spiker v. City of Ottumwa, 193 Iowa 844, 186 N.W. 465,467, the court said: "The plaintiff was lawfully upon the street, a street which, except for this excavation, was without any known defect, and his right to drive upon it even in the nighttime cannot be questioned. He was bound of course to exercise the care of an ordinarily prudent man under all the circumstances, and whether he did so was for the jury to say. In the Frohs case [Frohs v. Dubuque, 169 Iowa 431, 150 N.W. 62] we said: `A *Page 267 traveler is not bound to apprehend danger nor to be vigilant in discovering obstructions, but may walk or drive in daytime or nighttime, relying upon the assumption that the municipality has performed its duty in maintaining the streets in a reasonably safe condition for public travel and has not by its neglect exposed him to danger.'
"The answer to such questions is a matter of fact to be drawn by the jury as a conclusion from all the admitted and proven circumstances. There is no rule by which failure to look out for or discover danger when there is no reason to apprehend any, can rightfully be held contributory negligence as a matter of law. (Downing v. Merchants' Nat. Bank [192 Iowa 1250], 184 N.W. 722 [20 A.L.R. 1138])".
This court in Ernst v. City of Helena, 104 Mont. 249,65 P.2d 1167, 1168, said: "The real question is, Was the plaintiff guilty of contributory negligence as the proximate cause of the injury? The plaintiff was not guilty of negligence in traveling on the walk; she was familiar with the condition. In 20 R.C.L. section 98, it is said: `Mere knowledge of the offending instrumentality does not constitute contributory negligence. For example, a person walking or driving on the highway is not precluded from recovering for injuries produced by a defect therein merely by reason of the fact that he knew of the defect. But while an appreciation of the threatened peril is essential to destroy one's right of recovery, it is by no means true that the plaintiff must have been able to foresee the full result of this act or omission. He is not entitled to recover merely because the injury was greater than he anticipated. When, however, the specific evidence submitted only goes to the extent of establishing knowledge of the defect, the question of his contributory negligence should not be withdrawn from the jury. Indeed, it can only be in rare cases, if ever, that the question becomes one of law. In other words, it is for the jury to determine whether knowledge of the physical characteristics of the offending instrumentality constituted a sufficient warning of peril to the plaintiff.' The cases are there extensively cited in support of the *Page 268 text, and the law there stated is firmly established." (See, also, Bensley v. Miles City, supra.)
In my opinion the complaint is good as against the general demurrer interposed and it was error to render judgment against plaintiff.