City of St. James v. Stacy
203 F. 35
8th Cir.
1913
Check Treatment
ADAMS, Circuit Judge

(after stating the facts as above).

[1] The city owes to the traveling public the duty of exercising reasonable care to keep its sidewalks in a reasonably safe condition. In order, however, to render it liable for injuries for failure to perform its duties in this regard, it must appear that the city knew, or had reasonble cause to know, of the defective condition of the grating a sufficient length of time before the accident occurred to enable it to put it in a state of repair. The learned trial court submitted this, issue to the jury very clearly — certainly in such a way that the city can have no ground of complaint and makes no complaint on this account. The verdict of the jury being against the city necessarily concludes this issue in favor of the plaintiff below and establishes for the purposes of this case the requisite negligence to entitle plaintiff to recover, unless for other reasons he cannot do so.

The stress of the argument at bar and in the brief is that plaintiff was guilty of such contributory negligence as precludes recovery. It is said he was familiar with this raised joint, had often passed over it and necessarily knew its condition, and that the attempt to cross it on the occasion in question was an unwarrantable exposure and prevented recovery, and that the trial court erred in not instructing a verdict for the defendant according to the prayer of defendant’s counsel.

[2] We are unable to give our assent to this-contention. We cannot now review the correctness of the finding of fact by the jury. Our sole duty is to ascertain whether there was any substantial evidence upon which that finding can be sustained. Of this we have no doubt. A person who was entitled to use the sidewalk, and who might reasonably assume it was in a fairly safe condition for use, came upon the obstruction; the adjacent ground was icy and slippery, and it might well be that the raised joint in the grating presented a less' dangerous impediment to his crossing than the icy surroundings would have presented if he had attempted to go out into the street and avoid crossing the grating.

The question is: Did he exercise ordinary care and prudence under all the circumstances in attempting to cross over the grating? In other words, Did he fail to exercise the care and prudence which ordinarily prudent persons would have exercised under similar circumstances? We are unable, in view of all the facts and circumstances in the case, to say as a proposition of law that the plaintiff did not exercise that prudence which ordinary persons would have exercised under like circumstances. Whether he did or not was a question of fact for the jury under proper instructions. This case is quite similar *37in its facts to that of Mosheuvel v. District of Columbia, 191 U. S. 247, 24 Sup. Ct. 57, 48 L. Ed. 170.

On familiar principles of general law, reinforced by the authority of the case just cited, wTe have no hesitancy in affirming the judgm'ent, and it is so ordered.