Lewis

The appellee filed suit in the court below for injuries suffered in an automobile accident on December 25, 1935.

The complaint alleged that at the time of the accident the appellant was mining with a gold dredge and operating a machine and blacksmith shop, each within 100 feet of a public highway, but on opposite sides of the road, in the “old town” of Nevada Alder Gulch, Madison county, Montana; that behind the machine shop, uphill from the highway, there was a small permanent water course paralleling the highway and entering above the road, another side stream running under the highway in a culvert at right angles thereto; that, but for the acts of the appellant, the little tributary of the side stream would have flowed into the latter and under the culvert, and not formed *897 any ice on the road; that the appellant negligently caused debris to be put into and near the tributary and thus blocked the flow, causing the water to pass over the highway.

It was also averred that, because of one or more of the foregoing “negligent acts” of the appellant, a sheet of ice was formed on the highway, 100 or more feet long, extending entirely across the road.

According to the complaint,…