MR. JUSTICE FREEBOURN:
This is an appeal from an order of the district court of the eighth judicial district of the state of Montana, in and for the county of Cascade, sustaining defendant’s demurrer to plaintiff’s amendéd complaint and entering judgment for costs in favor of defendant.
On March 30, 1948, plaintiff filed his amended complaint, the essential allegations of which are: The corporate capacity of defendant ; its ownership and control of the street, curbing, boulevard and sidewalk in front of a residence located at 620 Eighth Avenue North in Great Falls, Montana; the existence of a city ordinance numbered 245, covering the connection of water service pipes between the city main and residence; that on November 6, 1946, one Johnson, a licensed plumber and layer of water service pipes, was given a license and permit by defendant under such ordinance, to lay water service pipes from the water main in the street to the said residence; that immediately after the issuance of the permit and pursuant to the same, a ditch was excavated for the laying of water service pipes from the street main on Eighth Avenue North to the said residence, such ditch being six feet deep and two feet wide, extending from the main
past the curb and through the boulevard or parking to the sidewalk; that on November 23rd, in the nighttime, plaintiff, without fault on his part, while walking from 618 Eighth Avenue North to his automobile, parked in the street, having no notice or knowledge of such excavation, fell into the same and was seriously and permanently injured; that such injury was proximately due to failure on the part of defendant to cover such excavation, to inspect the same, or to take any action to see that such excavation was protected by red lights and barricades; and that such excavation had been uncovered, unlighted, unbarrieaded and open for sixteen days and nights prior to plaintiff’s injury.
Defendant filed a general and special demurrer to the complaint. By stipulation between the parties the special demurrer was withdrawn and the general demurrer argued and submitted to the court. The court sustained the general demurrer, holding the complaint did not state facts sufficient to constitute a cause of action.
Ordinance 245, pleaded in the complaint, provides, among other things: (1) “No person * * * shall run any water service pipe * * * who shall not have first obtained from the city council a license for running water service pipes;” (2) that “the application for a license * * * shall be endorsed by the city engineer
m
* *” (3) “Upon the granting of such a license * * * the licensee shall file with the city clerk a bond * * * approved by the city council, conditioned for the protection of the City of Great Falls, against all losses or damages which may occur on account of * * * the carelessness or negligence of the licensee or his * * * employees * * (6) “before doing any work in connection with * * * any water service or excavating any trench, for the purpose of laying or repairing any water service pipe, the licensee shall obtain from the office of the city engineer a written permit which will give the location, nature and purpose of the proposed work * * (7) “all new water service pipes shall be laid not less than five feet below the ground surface of the
street. Before any trench shall be filled or any pipes covered, said pipes shall be inspected and approved by the city engineer * * (10) “Barricades shall be placed around excavations at all times and red lights shall be maintained from dark until sunrise.”
It is contended that the complaint does not state facts sufficient to constitute a cause of action and that the demurrer was properly sustained because the complaint did not allege the city had actual notice of the existence of the unbarricaded and unlighted excavation required by section 5080, R. C. M. 1935, as amended by Chapter 122, Laws of Montana 1937, which is as follows:
“Before any city or town in this state shall be liable for damages to person and/or property for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect or obstructions in any bridge, street, road, sidewalk, culvert, park, public ground, ferryboat, or public works of any kind in said city or town, it must first be shown that said city or town had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received; the city clerk must make a permanent record of all such reported defects and shall report to the city street commissioner immediately upon notice of-such defect or obstruction; and the person alleged to have suffered such injury or damage, or someone in his behalf, shall give to the city or town council, commission, manager, or other governing body of such city or town, within sixty days after such injury is alleged, to have been received or suffered, written notice thereof, which notice shall state the time when and the place where such injury alleged to have occurred. Provided, however, that this' section shall not exempt cities and towns from liability for negligence because of failure to properly place signs, markers or signals to warn persons of excavations or other obstructions existing and caused by said city or town, upon any
bridge, street, alley, road, sidewalk, pavement, culvert, park, public ground, ferryboat or public works of any kind. ’
It is the duty of a city, owed to the public generally, to keep its public streets or walks in a reasonably safe condition for travel. Olson v. City of Butte, 86 Mont. 240, 283 Pac. 222, 70 A. L. R. 1352; Childers v. Deschamps, 87 Mont. 505, 290 Pac. 261; Headley v. Hammond Bldg., Inc., 97 Mont. 243, 33 Pac. (2d) 574, 93 A. L. R. 794; Nord v. Butte Water Co., 96 Mont. 311, 30 Pac. (2d) 809.
This duty extends to dangerous conditions near the sidewalks. Tiddy v. City of Butte, 104 Mont. 202, 65 Pac. (2d) 605.
Such duty, as respects the public, rests primarily upon the city, and the obligation to discharge this duty cannot be evaded, suspended or cast upon others, by any act of its own. 4 Dillon Municipal Corporations, 5th Ed., sec. 1720, pp. 3020, 3021, 3022; Mulder v. City of Los Angeles, 110 Cal. App. 663, 668, 294 Pac. 485; 6 McQuillin, Municipal Corporations, 2nd Ed., sec. 2834, p. 1158.
The purpose of the notice required in section 5080 is to enable the city to prevent accidents by repairing or guarding the defect or obstruction, thus protecting the traveling public. 25 Am. Jur., “Highways,” sec. 441, p. 733; 4 McQuillin, Municipal Corporations, 2nd Ed., sec. 1810, pp. 1049-1050.
Section 5080 does not expressly mention excavations, defects or obstructions created by permission of a city. Any reasonable construction of this section, which preserves the primary duty of the city to keep its streets in a reasonably safe condition for travel must be made. A reading of the section clearly leads to the conclusion that the “defect” or “obstruction” of which actual notice is required applies only to such as arise and are created without notice, knowledge or permission of the city. That the city must have “reasonable opportunity to repair such defect or remove such obstruction before such injury, ’ ’ strengthens this conclusion. The city could not “repair” or “remove” the water service excavation, giving these words their ordinary
meaning, since “repair” means “to restore to a sound or good state after decay, injury, dilapidation, or partial destruction,” etc., while “remove” means “to change or shift the location of, to remove by lifting, pushing aside,” etc. Merriam’s Webster’s New International Dictionary.
Here the street could be made safe for travel by filling in the excavation, which would defeat the purpose for which it was opened, or by seeing barricades and red lights were placed. Section 5080 is silent as to these things.
Such excavation disturbed the surface of the street in such a manner and to such an extent as to necessitate the taking of precautions for the protection of travelers. It was inherently or intrinsically dangerous. 25 Am. Jur., “Highways,” sec. 439, pp. 730, 731.
If it be said that “defect” and “obstruction,” as used in section 5080, include an excavation opened in a public street by permission of the city, the requirement of section 5080 that the city be given actual notice was met when the city issued the permit to open the excavation.
When the city granted permission to create the excavation it had actual notice and knowledge of the nature, character and purpose of the excavation, its location, that it would be open within a reasonable time after the issuance of the permit, that it would remain open until the service pipes were in and covered, that the work was in progress, and that such excavation would require barricades and red lights as warnings in order to make the street safe for travel.
There was little difference in the notice and knowledge which the city had when the excavation was opened by its permission and where the city caused the excavation to be opened. Section 5080 specifically states cities shall not be exempt from “liability for negligence because of failure to properly place signs, markers or signals to warn persons of excavations or other obstructions existing and caused by said city.” We believe it would be unreasonable to require that, with notice and knowledge of these
facts before the excavation was open or in existence, further notice be given the city before it was compelled to discharge its primary duty of exercising ordinary care to keep the street in a reasonably safe condition for travel, by inspection and seeing that barricades and red lights were placed. The case at bar, where the excavation was open, unbarrieaded and unlighted for sixteen days and nights, resulting in injury to a traveler on the street, speaks convincingly in support of this belief. Further, section 8781, R. C. M. 1935, provides: “Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructive notice of the fact itself, in all cases in which, by prosecuting such inquiry, he might have learned such facts. ’ ’
Having issued a permit to open the excavation, it became the duty of the city to exercise ordinary care to make reasonable inspection to see that barricades and red lights were placed, so that the street was in a reasonably safe condition for travel. Failing in this the city was negligent.
To require this duty of the city is no hardship, since “city officials are charged with the duty to keep in touch with the condition of the city’s streets and alleys and are not to be excused if they fail in the performance of that duty. ’ ’ Barry v. City of Butte, 115 Mont. 224, 142 Pac. (2d) 571, 573.
“The power of a city to permit any private use of its streets can be exercised only for the benefit of the general public. (Citing cases.) Therefore a city is liable, in the first instance, in case of injury, although the defect is caused by the negligence of another, also liable.” Nord v. Butte Water Co., supra [96 Mont. 311, 30 Pac. (2d) 812], See also, Olson v. City of Butte, supra; and McCabe v. City of Butte, 46 Mont. 65, 125 Pac. 133, 135.
In Mulder v. City of Los Angeles, supra [110 Cal. App. 663, 294 Pac. 486], where permission was given to make fills on a street, the Supreme Court of California said: “But in such case we are of the opinion, that the duty of the city to make reasonable provision against damage to private persons or property
arising out of such work, and its liability for failure to use reasonable care therein, was not different from the duty and liability which would be imposed where the work was done directly by the city through its street work employees under direction and control of the board of public works. * * *
‘ ‘ On the facts shown by the evidence in the case at bar it was the duty of the city through its department of public works, when it elected to permit the work in question to be done by Butterfield, to maintain over his work such supervision as would reasonably guárd against any negligence which would leave the street in an unsafe and dangerous condition. The city was not authorized to abdicate its powers or surrender to a private person its duty to exercise proper supervision of the work which it permitted to .be done. ’ ’
25 Am. Jur., “Highways,” pp. 730, 731, sec. 439, has this to say: “There is some difference of opinion with respect to the necessity for knowledge or notice on the part of a municipal or quasi-municipal corporation of dangerous conditions created in connection with acts performed under the authority of a license granted by such corporation, as a condition precedent to its liability. According to many authorities the test of the corporation’s liability without subsequent independent notice is whether the work or acts to be performed will involve the disturbance or obstruction of the way in such a manner or to such an extent as to necessitate the taking of precautions for the protection of travelers, or, as sometimes stated, whether the work is inherently or intrinsiealty dangerous. The theory underlying many decisions is that the issuance of such license is an element which of itself serves to affect the corporation with anticipatory notice of all such dangerous conditions as are likely to be produced by the authorized acts if the licensee fails to take the precautions which are appropriate under the circumstances for the purpose of securing the safety of travelers. * * *
“With respect particularly to excavations, one line of decisions holds that the corporation is bound to supervise the work of the
licensee with, respect to the guarding of the excavation and the proper restoration of the original condition of the street.” See also, 6 McQuillin, Municipal Corporations, 2nd Ed., sec. 2831, pp. 1150, 1151.
In District of Columbia v. Woodbury, 136 U. S. 450, 10 S. Ct. 990, 995, 34 L. Ed. 472, the Supreme Court of the United States said: “People must build houses, and, in order to do that, it is necessary to excavate for cellars and areas, if needed, and to dig trenches to connect with the water mains, gas pipes and sewers. Nobody has a right to do this without a permit from the authorities, and, if any person undertakes to do it without a permit, he would be responsible for any injury resulting; but the District would not be, unless it had the notice already spoken of. If a permit is granted, as is usually the case, the fact is notice to the authorities that the work is in progress, and then they are charged with the duty of seeing that it is properly conducted.
“These works are necessarily dangerous to life and limb, and it is the duty of a person doing the work to protect it against accident to travelers on the street, and the duty of a private person is very much the same as that of the District itself, when it is prosecuting an improvement. If a private individual fails to protect the excavation or hole, or whatever it may be, it is the duty of the district authorities to see that it is protected, and they are held responsible that he shall do it; for they were notified that he was going on with the "work when he obtained his permit. ’ ’
In Tepfer v. City of Wichita, 90 Kan. 718, 136 Pac. 317, 318, 49 L. R. A., N. S., 844, the Kansas Supreme Court said: “Assuming, as we must, that the street was plowed with authority from the city commissioner, it must be held that the city is chargeable with notice and knowledge of the dangerous condition caused by the authorized act. The city, having been given the control of the streets and charged with the responsibility of maintaining them in a safe condition for use by the public, cannot, by any contract which it may make or permission which it may give to third persons to dig therein, avoid liability for injuries result
ing from a breach of this primary duty. The obligation to discharge this duty cannot be evaded by intrusting the duty to others, nor can the city escape liability for resulting injury because the plowing of the street was done by another under its authority. So far as its liability is concerned, it is immaterial whether the defect in the street is caused by the direct act of the city or that of a third party acting under authority of the city. If the plowing of the street had beén done by officers or employes of the city, it would not have been necessary to have given the city special notice of the dangerous condition of the street, and no more was it necessary where a third party was authorized to plow it and to take earth therefrom. ’ ’
In Hyde v. City of Boston, 186 Mass. 115, 71 N. E. 118, 119, the Supreme Court of Massachusetts said: “It appeared that a deep trench had been excavated in the street for the purpose of laying a drain from a building in the process of erection to the main sewer. The trench extended under the railway track, and it was admitted that the drain was being laid under a permit from the city to one Shaughnessey. The evidence tended to show that the trench had been there four or five days. * * *
“So far as the street was suffered to remain open for travel, it was the duty of the city to take proper precautions to guard against accidents, and to render it safe. * '*
'*
“The city had notice, or at least could be found to have had notice, of the existence of the trench, and of the circumstances under which it was being dug, and was bound to take reasonable precautions for the safety of travelers. (Citing other Massachusetts eases.) ” See also: Bennett v. City of Everett, 191 Mass. 364, 77 N. E. 886.
In Repperd v. Chapin et al., 190 Mich. 19, 155 N. W. 706, the Supreme Court of Michigan said: “It appears that the other defendants are licensed plumbers in the city of Jackson, and a permit had been given to them the day before by the city to make this excavation, and that an ordinance of the city of Jackson provided that no such excavation should be left open over
night. * * * In the present ease the city of Jackson authorized the other defendants to open the excavation. It thereby had notice and knowledg’e that the excavation was about to be made. After that its liability to third persons for injuries was no different than as though it were doing the work itself. (Citing other Michigan eases.)”
In Russell v. Inhabitants of Town of Columbia, 74 Mo. 480, 41 Am. Rep. 325, it was held that where the plaintiff’s injury was caused by falling into a trench dug for a gas main, the contention that affirmative proof of notice, actual or constructive, was a prerequisite to liability on the part of the defendant was rejected on the ground that “the trench having been dug by a company, to which the town of Columbia had given permission to make it, and which permission it was at liberty to withhold, the liability of the corporation is the same as if it had been made by its own servants, by its direction. ’ ’ See also: Lindsay v. Kansas City, 195 Mo. 166, 93 S. W. 273.
In Spiker v. City of Ottumwa, 193 Iowa 844, 186 N.
W.
465, 466, the Supreme Court of Iowa said: “Having given Burnaugh a permit to enter upon and tear up the street for his private use and convenience, and of necessity to interfere with the public use of the street and (unless properly guarded) to create a menace to the safety of travelers lawfully using the public way, can the city escape liability for injuries caused by the negligence of the permit holder in making the excavation, for no better reason than the failure of plaintiff to prove that notice, actual or constructive, of the open and unguarded condition of the trench had been brought home to it before the injury occurred ? * * *
“All the purposes to be served by notice were forestalled or accomplished in the fact that the city, which is charged with the nondelegable duty to care for its streets and keep them free from nuisances, was notified in advance and gave express permission to Burnaugh to dig the trench which did the mischief. This is not only the rule of the great weight of authority, but is manifestly just and reasonable.”
In City of Denver v. Aaron, 6 Colo. App. 232, 40 Pac. 587, 588, the Supreme Court of Colorado said: “The duty of keeping its streets in repair and in reasonably safe condition for travel in the usual modes rests primarily upon the municipality, and it must answer for any injury occasioned by its neglect of such duty. This duty cannot be avoided, suspended, or cast upon others by any act of its own. 2 Dill. Mun. Corp., sec. 1024. Notice, actual or implied, of an obstruction or defect in a street, occasioned by accident, or by the act of a wrongdoer, must be brought home to the city, before any liability can be fastened upon it; but 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 of respondeat superior. Being charged with the care of its streets, it cannot relinquish its supervisory 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. City of Utica, 17 N. Y. 104 [72 Am. Dec. 437] ; Russel v. Inhabitants of Columbia, 74 Mo. 480 [41 Am. Rep. 325] ; Haniford v. City of Kansas, 103 Mo. 172, 15 S. W. 753; Boucher v. City of New Haven, 40 Conn. 456.”
In Kinsey v. City of Kinston, 145 N. C. 106, 58 S. E. 912, 913, the Supreme Court of North Carolina said: “It is admitted that on the day the excavation was made the defendant issued its permit authorizing it to be done. The defendant’s authorities were therefore expressly charged with knowledge of the character of the work and its possible dangers to those of the citizens who should use the street especially after nightfall, as the plaintiff
happened to do. A ditch cnt across a much used street in a city is necessarily dangerous, and it is the duty of the person doing the work to protect it against accident to those using the street. The duty of a private person is very much the same as that of the city itself when it is prosecuting an improvement. If a private individual fails to protect an excavation in the street, then it is the duty of the city authorities to see that it is protected, and they are held responsible that she should do so, for they were notified that he is going on with the work when he obtains the permit. The city is liable for negligence in failing to exercise supervision and inspection if injury results by such excavation made by an individual under such permit or license issued by it.”
In 43 C. J., “Municipal Corporations,” sec. 1820, pp. 1042 1043, it is stated: ‘ ‘ Municipal corporations are chargeable with knowledge of their own acts, or those ordered by them; and therefore whenever defective conditions in streets are due to the direct act of the municipality itself, or of persons whose acts are constructively its own, as where work is done under contract with the municipality, or, as held in some cases, where the defect is created by persons acting under a license or permit from the municipality, no notice need be shown, or, as it is otherwise stated, notice of the defect is necessarily implied in such eases. * * *
“The fact that actual notice, as a condition of municipal liability, is expressly provided for by statute or municipal charter does not change the rule that notice is not necessary when the defective condition is due to the direct act of the municipality or of those acting by its authority, including eases of defects in original construction. ’ ’
The complaint alleges, “that such injury was proximately due to failure on the part of defendant to cover such excavation, to inspect the same, or to take any action to see that such excavation was protected by red lights and barricades; and that such excavation had been uncovered, unlighted, unbarricaded, and open for sixteen days and nights prior to plaintiff’s injury.”
The complaint states a cause of action.
We are mindful of what this court has said in Maring v. City of Billings, 115 Mont. 249, 142 Pac. (2d) 361; and Lazich v. City of Butte, 116 Mont. 386, 154 Pac. (2d) 260.
They are, however, readily distinguishable from the case at bar. In the Maring Case no permit had been issued by the city for the opening of the excavation, and this court held plaintiff’s complaint showed contributory negligence as á matter of law. In a special concurring opinion in the Maring Case [115 Mont. 249, 142 Pac. (2d) 363], Chief Justice Johnson, then presiding, said: “If the city were in this case liable under the statute, it must logically ,be because the application for and issuance of the permit gave actual notice of the excavation * * ®.”
In deciding the Lazich Case [116 Mont. 386, 154 Pac. (2d) 261], this court went on the proposition that plaintiff predicated her action “upon the theory that when the city issued the permit to the contractor who did the remodeling' work, the city thereby constituted the contractor the city’s agent * *
For the reasons stated the judgment of the lower court is reversed with instructions to overrule defendant’s demurrer.
MR. JUSTICE BOTTOMLY concurs.