98 Mich. 245 | Mich. | 1893
Plaintiff seeks to recover for an injury to his left knee, alleged to have been occasioned by a fall, on
Counsel for defendant requested the court to instru'ct the jury as follows:
“ 1. If you believe the testimony of the sidewalk inspector, Walker V. Keyes, that the walk in question was repaired by the city employes October 22, 1890, then the plaintiff cannot recover in this action.
“2. If you do not believe the testimony of witness Keyes, but find that the walk was in a defective condition, yet, if you believe the plaintiff knew this defective condition, and could have passed over it safely by the exercise of reasonable care, then he cannot recover in this action, and your verdict must be for the defendant.”
If the sidewalk had been repaired on the 22d, and placed in a condition reasonably safe for pedestrians, and plaintiff was injured on the very next day, it cannot be said that a sufficient length of time had elapsed from -which notice of the condition could be inferred, nor that -.the city had had a reasonable time within which to repair '.the defect.
While contributory negligence is not to be presumed ffrom the knowledge of the existence of the defect, such ¡knowledge enjoins upon a party a degree of care commensurate therewith.
The judgment will be reversed, and a new trial ordered.