26 Wash. 61 | Wash. | 1901
The opinion of the court was delivered by
The plaintiff in this action seeks to recover from the defendant for injuries which she alleges she sustained by reason of falling into a hole in the side
This court has said:
“Generally the question of contributory negligence is for the jury to determine from all the facts and circumstances of the particular case, and it is only in rare cases that the court is justified in withdrawing it from the jury.” McQuillan v. Seattle, 10 Wash. 464 (38 Pac. 1119, 45 Am. St. Rep. 799.)
Does the case now under consideration fall within the rare exceptions? The respondent claims that it does,
The law is well settled, that knowledge of a defect in the sidewalk, by the person injured, before he goes upon the same, or before the injury, does not per se establish negligence upon his part. Village of Clayton v. Brooks, 150 Ill. 105 (37 N. E. 574); Samples v. Atlanta, 95 Ga. 110 (22 S. E. 135) ; Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502) ; Lowell v. Township of Watertown, 58 Mich., 568 (25 N. W. 517) ; McKeigue v. Janesville, 68 Wis. 50 (31 N. W. 298) ; Kelly v. Town of Fond du Lac, 31 Wis. 179; Nichols v. Town of Laurens, 96 Iowa, 388 (65 N. W. 335) ; Mayor, etc., of Baltimore v. Holmes, 39 Md. 243; Evans v. Utica, 69 N. Y. 166 (25 Am. Hep. 165) ; Millcreek Township v. Perry, (Pa.) 12 Atl. 149. Exposing one’s self to possible injury with knowledge of the danger is evidence of negligence as a matter of fact.
“Therefore,” says the supreme court of Illinois, “if a person attempts to pass over a sidewalk, bridge or other structure, knowing the same to be in a dangerous condition, and in such attempt receives injury, his knowledge of the danger will presumptively establish contributory negligence. But such presumption is not conclusive. It is disputable and may be rebutted by evidence of the exercise of ordinary care under the circumstances of the particular ease.” Village of Clayton v. Brooks, supra.
If the danger arising from the known defect is obviously of such character that no person, in the exercise of ordinary prudence, would attempt to pass over
“Where the danger is exceedingly small and trivial it may not be at all hegligent to disregard it; where it is exceedingly great and obvious, it would be negligence per se to incur the' hazard of being injured by it. In other cases, it would be open to question whether incurring such possible or probable hazard would be consistent with ordinary care; and in cases of this kind the question of contributory negligence is one for determination by the jury.” Samples v. Atlanta, supra.
The case at bar is not a case where the danger is shown to be of such a character that no person in the exercise of ordinary prudence would incur the risk of injury. The evidence shows that the plaintiff had been in the habit of going over the walk daily, and was familiar with it from August 7th until the time of the injury. It appears that there was a hole broken in the walk a few days before the accident, of which she had knowledge. It appears the walk was used daily by others, up to, before, and after the accident. The caution of the pjaintiff to the children was to look out for this particular hole. The evidence further shows that the plaintiff was stepping carefully forward when she fell. The evidence fails to disclose the size and nature of the hole further than that it was a broken plank. There is no evidence as to the width of the sidewalk, or as to whether the plaintiff could with safety pass to the right or left of the hole or step over it. The fact that the walk was in daily use, and
It is only in cases where the danger in the walk" is obvious and of such a character that a prudent person would not use it, that another route, if convenient, must be .sought for. In such cases evidence of another safe, convenient, and accessible route is admissible for the purpose of showing that there was no necessity to make the attempt to pass over the manifestly hazardous way. One travelling by night has the same right as one travelling by day, but greater vigilance must be exercised, and the question whether such vigilance was exercised is ordinarily for the jury. It is true that the testimony dis
The judgment of the court below granting a non-suit and dismissing the action is reversed, and this cause is remanded for further proceedings; appellant to recover costs of this appeal.
Reavis, C. J., and Fullebton, Andees, Dunbab, Mount and Hadlet, JJ., concur.