delivered the opinion of the court.
Numerous errors are assigned, but those that are sufficiently specific to require notice challenge only the rulings of the сourt below in denying the motion for judgment on the pleadings, motion for nonsuit, and in giving and refusing certain instructions. The ground upon which the mоtion for judgment upon the pleadings was predicated was the insufficiency of the replication in not designating the count of the answer it was intended to deny. Section 71 of our Code of Civil Procedure provides: “ The replication may be gеneral in terms, denying all new matter set up in the answer.” Section 60 provides that the sufficiency of a replication may hе attacked by demurrer, or by motion. Defendant failed to so challenge it, and the defect at most being a formal onе, could not be reached by a motion for judgment on the pleadings. Orman v. Mannix,
“ The wаlk on the opposite side of the street is not good and not bad. You can get along with a fair degree of safety. I was walking on the upper outside edge of the walk. I deemed it safer on the high than on the low side, and concluded to walk on it. I had then in mind the dangerous condition of the walk. I knew the incline was there; had known of it two years. * * * I was over it once a wеek; perhaps some weeks was over it two or three times.”
It is insisted by counsel for the city that it thus appearing from plаintiff’s testimony that he was familiar with the defective condition of the walk, his attempt to pass over it was not consistent with reаsonable prudence and the exercise of proper care on his part to avoid danger. In other words, thаt by using the walk, with prior knowledge of its defective condition, the act of plaintiff constituted negligence per se. We do not think, under аll the conditions disclosed by the testimony, that it can be said, as a matter of law, that the conduct of plaintiff constituted nеgligence per se; but that, under the circumstances, it became a question for the jury to determine whether, in view of the nature of the defect, and the degree of danger to be apprehended from its existence, the ease or difficulty of avоiding it by using other portions of the street, the plaintiff exercised that degree of care and caution that an ordinarily prudent and careful person would use in the same situation.
The court below adopted this view, and denied the motion for nonsuit, and upon the close of the testimony instructed the jury that the fact alone of prior knowledge of the condition оf the sidewalk on the part of plaintiff would not pre- ■ vent his recovery, if from all the facts and circumstances in evidence, taking into consideration his knowledge and familiarity with the walk, he exercised ordinary care and caution to avoid the injury.
The rule of law as laid down by the court below on this
“ It is well settled, that while knowledge of a defect is always an important fact to be considered in determining the question of contributory negligence, that fact of itself does not, by any means, always prove thаt the plaintiff was in fault. The decisions in other states are in harmony with our own.”
And in Kavanaugh v. City of Janesville,
“ Nor do we think there is any ground for saying that she (plaintiff) was guilty of nеgligence because she attempted to pass along the walk there, well knowing its dangerous condition. She was pаssing along with due caution—as we must assume after the verdict of the jury—one of the public streets of the city which was defeсtive and out of repair. She had passed there many times before safely, notwithstanding its dangerous condition, and becаuse she attempted to do so again, we are asked to hold, as a matter of law, that she was guilty of negligence that directly contributed to the injury. This we cannot do.”
Among the many cases to the same effect are Lowell v. Township of Watertown,
We think the court below fully and fairly instructed the jury upon the law of the case, and committed no error in refusing the instructions asked by defendant. If it failed to
We think the special findings of the jury are consistent with, and support, the general verdict; and that both are sustained by the clear weight of evidence. A careful review of the record discloses no error prejudicial to the rights of defendant. The judgment of the court below is therefore affirmed.
Affirmed.