delivered the opinion of the court.
So far as germane to the questions involved in this appeal, the substantial allegations of the complaint are: That the defendant, a corporation, is the owner of the Tzarena lode mining claim, situate partly within and partly without the corporate limits of the city of Butte; that on July 19, 1911, there was, and for more than a year prior thereto had been, a certain shaft, about forty-five feet deep, on this property, which the defendant had negligently permitted to remain ‘ ‘ open, exposed and unprotected, without a substantial cover, or any cover whatever being placed over the same, or without a tight fence, or any fence whatever, being placed around the same”; that said shaft “was approximately eight feet long and four feet wide from the bottom thereof to within about five feet of the natural surface of the ground adjacent thereto, at which point the sides of the said shaft spread outwardly until the same reached the natural surface, forming
1. This complaint is attacked as insufficient because it alleges an affirmative act of the plaintiff, to-wit, that he ran into the mouth of the shaft, as a proximate cause of his injury, and does not contain sufficient allegations to negative contributory negligence. The general rule as settled in this state by the [1] uniform course of decision is that where the complaint shows that a proximate cause of plaintiff’s injury was the act of the plaintiff himself, it will be held insufficient unless it goes further and by appropriate allegations shows that the plaintiff was, at the time, exercising ordinary care and circumspection. (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Hunter v. Montana C. Ry. Co., 22 Mont. 525, 534, 57 Pac. 140; Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 68 Pac. 852; Ball v. Gussenhoven, 29 Mont. 321, 328, 74 Pac. 871; Nord v. Boston & Mont. etc. Co., 30 Mont. 48, 75 Pac. 681; Birsch v. Citizens’ El. Co., 36 Mont. 574, 93 Pac. 940; Poor v. Madison R. P. Co., 38 Mont. 341, 361, 99 Pac. 947; Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063; Badovinac v. Northern Pac. Ry. Co., 39 Mont. 454, 104 Pac. 543.) Of course this rule has reference only to acts of which negligence must be predicated in the absence of a countervailing explanation.
At what age a child becomes' sui juris, so that negligence may be predicated of his acts, is a matter upon which authorities dif
2. Under the allegations of the complaint, the respondent was technically a mere trespasser upon the property of the appellant. (Egan v. Montana C. Ry. Co., 24 Mont. 569, 63 Pac. 831; Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373.) It is the undoubted rule at common law that the owner of real property owes no duty to trespassers, other than to refrain from intentional injury. Hence no right of action would arise, in the absence of statute, in favor of a trespasser who might suffer injury under the circumstances here pleaded (Driscoll v. Clark, supra) ; but every owner holds his property subject to reasonable control and [3] regulation of the mode of keeping and use as the legislature, under the police power vested in the state, may think necessary for the prevention of injury to the rights of others and
The question, then, is whether or not a trespasser upon private property may recover damages for injury suffered by him while so trespassing, because of the property owner’s failure to comply with section 8535, Revised Codes. This section is found in Title X of Part I of the Penal Code, under the heading, “Crimes Against the Public Health and Safety,” and, so far as pertinent to this ease, reads as follows: “Every person who sinks any shaft * * * or causes the same to be done, within the limits of any city or town or village in this state, or within one mile of the corporate limits of any city or town * * * and who shall fail to place a substantial cover over or tight fence around the same, is punishable by a fine not exceeding one thousand dollars. The owner of any property * * * shall be deemed to be within the provisions of this Act if he permit any such shaft * * * to remain open, exposed or unprotected upon his property * * * for a period of more than ten days. * * * ” The contention is that this is a mere penal statute, providing its own express sanction, and, in the absence of appropriate language, gives rise to no civil responsibility whatever. ín answer [4] to this we remark that there is by this statute imposed a duty positive and absolute, where none existed before; and it is the well-settled rule that failure to observe such a duty is negligence per se. (Osterholm v. Boston & Mont. etc. Co., 40 Mont. 508, 107 Pac. 499; Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226; Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441, 9 L. R. A. (n. s.) 339, note.) In the Melville Case, decided at the last term of this court, we said: “It is the general rule that, where a statute makes a requirement, or prohibits a thing, for the benefit of a person or class of persons, one injured by reason of a violation of it is entitled to maintain an action against him by whose disobedience he has suffered injury; and this is true whether the statute is penal or mot.” To this declaration we still adhere as in accord with the express provisions of our Code. A failure to perform an act imposed by law as an absolute duty is an unlawful omission (section 5051, Rev.
But it is urged that this principle cannot apply in favor of one not within the purview of the statute by which the duty is imposed, and to this we assent; so that the remaining inquiry is: [5] Does the duty imposed by section 8535 apply for the benefit of persons who may by chance be technical trespassers upon mining property ? This question, both directly and in its analogies, has been before many courts with apparent diversity of result; but no real difficulty is encountered in extracting a consistent rule out of the apparent conflict of decision, when it is observed that the various statutes involved are interpreted according to substantially this classification: (a) Those imposing duties to or for the benefit of the municipality or to the public considered as an entity. From such, statutes no private right of action arises. (Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502; Taylor v. L. S. & M. S. Ry., 45 Mich. 74, 40 Am. Rep. 457, 7 N. W. 728; Frontier Laundry Co. v. Connolly, 72 Neb. 767, 68 L. R. A. 425, 101 N. W. 995.) (b) Those imposing duties to persons of a particular class. To have a right of action from such a statute one must clearly belong to the contemplated class. (Osterholm v. Boston & Mont. etc. Co., supra; Toomey v. Southern Pac. R. R. Co., 86 Cal. 374, 10 L. R. A. 139, 24 Pac. 1074; Flanagan v. Sanders, 138 Mich. 253, 101 N. W. 581.) (c) Those imposing duties to the public, considered as a composite of individuals, in which ease a right of action does arise in one of the public when, and only when, he has sustained some special injury by reason of noncompliance. (Hayes v. Michigan C. R. Co., 111 U. S. 228, 239, 240, 4 Sup. Ct. Rep. 369, 28 L. Ed. 410 ; Philadelphia W. & B. Ry. v. Stebbing, 62 Md. 504, 516, 517; Sluder v. St. Louis Transit Co., 189 Mo. 107, 5 L. R. A. (n. s.) 186, 187, 88 S. W. 648; Union Pac. Ry. v. McDonald, 152 U. S. 262, 282, 14 Sup. Ct. Rep. 619, 38 L. Ed. 434.) It may be said, and perhaps correctly, that these are essentially restatements of the same thing, looked at from different angles (note, 9 L. R. A. (n. s.) 343) ; but that is unimportant. The important thing is that there are statutes such as we have mentioned under (e), and
In further elucidation of our views of this phase of the present case we quote the language of the supreme court of Colorado from the Richardson Case, supra: “An open, unprotected shaft
3. It is contended by appellants that this case is not within the provisions of section 8535 of the Penal Code, because it was [6] not shown that the Monidah Trust sank the shaft. The answer is found in the second portion of the section, viz.: ‘ ‘ The owner * * * shall be deemed to be within the provisions of this Act if he permit any such shaft * * * to remain open, exposed or unprotected upon his property * * * for a period of more than ten days. ’ ’ But it is urged that the words “any such shaft” restrict the application of the Act to shafts sunk after its passage. We cannot assent to this. As stated
4. An issue was made in the pleadings as to whether the shaft in question was, at the time of the accident, within a mile of the corporate limits of Butte. One of the grounds of [7] appellants’ motion for nonsuit was as follows: “Sixth. For the reason that the plaintiff has wholly failed to show that the defendants’ mining claim, the Tzarena mining claim, or the shaft thereon rather, was within * * * a mile of the corporate limits of the city of Butte, and for the reason that the plaintiff has wholly failed to establish the corporate- limits of the city of Butte.” We think the motion should have been granted on this ground. The only testimony bearing upon the proximity of the shaft to the city limits is that of McMahon, and nowhere does he say what the fact was at the time of the accident. He testifies entirely as of the date of trial, except that in one unresponsive answer he speaks as of the date -of his survey, which was after the accident. Moreover, while in his direct examination he says, “I know where the boundaries of the city is near what is known as the Tzarena lode claim, No. 1092, and know the city limits in that vicinity,” on his- cross-examination he nullifies this statement and the value of the map he had made by the following declaration: “I got my information as to the
5. Since this case must be reversed, it is unnecessary to enlarge upon the other assignments of alleged error. Suffice it to say that we see no fault in the other rulings complained of, as they are presented by this record.
The discussion contained in the first part of this opinion settles adversely to appellants the contention that the evidence establishes contributory negligence as a matter of law. We are not prepared to say that, even if plaintiff had been an adult, the evidence would have shown contributory negligence so as to take the case from the jury; and certainly it did not do so as to this infant plaintiff. So, too, we think the evidence was sufficient to establish the damages with as much certainty as is requisite in this class of cases. As to whether it justified the amount awarded by the jury, we express no opinion.
Because of respondent’s failure to submit sufficient proof that the shaft into which he fell was, at the time of the accident, within one mile of the corporate limits of the city of Butte as alleged, the judgment and order appealed from are reversed, and the cause is remanded for a new trial.
Reversed and remanded.