103 Tenn. 368 | Tenn. | 1899
Tbe defendant, a negro about seventy-three years of age, brings this suit to recover damages for an injury .sustained by him in falling over an unprotected supporting wall to the east side of Central Avenue, one of the public streets of the city of Knoxville. The accident occurred near the point of intersection of this avenue with Willow Street, about nine o’clock at night, when defendant in error was returning from the market to his home by a route usually taken by him. There had been a guard rail running along the top of this supporting wall, extending as far as Willow Street, for the safety of .persons using Central Avenue, but this was' removed a month or more before this accident, by a contractor who was doing some work for the city. The fact of its removal was known to plaintiff in error, but at the moment of the accident it had escaped him, and he -was then unconscious of the danger incident thereto. Passing along Central Avenue and reaching what defendant in error supposed to be Willow Street, he turned for the purpose of entering it, when he stepped over the wall in question and was precipitated to the rocks beneath, receiving the injuries of which he complains. The point . where this occurred was about five feet short of Willow Street; it was unlighted by a lamp or electric light, and was thrown in deep shadow by a house or houses across- the street.
On this state of facts the trial Judge charged
Being dissatisfied with this instruction, the de
These requests were unsound in at least two particulars. In the first place the question of contributory negligence, whenever the facts of the case raise it, cannot be settled .by the Court, but' goes to the jury, whose exclusive province it is to consider and determine it. In the second place, in no case where contributory negligence on the part of the plaintiff is shown, to use the terms of these requests, does “the law attribute his injury to his contributory negligence,” and thus bar his recovery. This, like the other question, goes to the jury, and upon all ■■ the facts they determine whether, granting such negligence, it in the whole or in part proximately occasions the injury. If it did in either respect, then under proper-instructions they are bound to find against the
Still another objection is that they give undue weight to the fact that the plaintiff below, at the time of the accident, had knowledge of, but in a moment of mental abstraction lost' consciousness of the perilous, condition in which the removal of the guard rail left one side of Central Avenue. In support of these requests in his brief and argument, the attorney for the city relies largely upon the text of IVIr. Beech, in his work on' Contributory Negligence, p. ,40, to the following effect: “Where one knowing the danger temporarily forgets it and in consequence suffers, his forgetfulness will not avail him as an excuse. What he knows he must remember at his peril, and not to remember is contributory negligence if it •/ occasions the injury.”
If this is to be understood as announcing the
Mr. Jones, in Sec. 221 of his work on Negligence of Municipal Corporations, says: “Many cases have arisen where effort has been made to establish the rule that knowledge of a defect in any subsequent user of a walk would estop a person injured from claiming damages; but this is not the law, for such knowledge does not always bar a party from a right of recovery. If a person knows that a walk is defective, he may use it, unless his act in so doing is not reasonably prudent. He is not obliged to give up a walk provided by the corporation, or else use it at his peril, but he is obliged to exercise reasonable care.” These propositions are sustained by many authorities collated in a footnote.
Mr. Lawson, in Yol. 3, Sec. 1169, of his work on Rights, Remedies, and Practice, says that it is not required “that the thoughts of the traveler shall be at all times fixed upon these defects which he may have previously noticed.” In support of his text this author cites George v. Haverhill,
The soundness of this ■ view is recognized in other well-considered- cases. In Weed v. Village of Balston Spa, 76 N. Y., 330, the facts were that the plaintiff in error was seriously - injured by driving into a street excavation of which he had previous knowledge; and in resisting recovery in that case, it was urged that the failure to avoid it with this knowledge was culpable negligence, which should bar a recovery.- To this the Court said: “The - plaintiff, although he had known of the excavation, might not remember its exact- location, • or the fact may have been forgotten. The plaintiff was driving in a slow trot, and the fact that he did not keep in the middle of the street was not negligence, if • at the time he was not conscious of impending danger.”
In Kelly v. Inhabitants of Blackstone, 147 Mass., 448, it was distinctly held that “a traveler may have his attention momentarily diverted from the defects in the way, even if known to him, and yet be in the exercise of due care.” In McQuillan v. City of Seattle, 10 Wash., 464 (S. C., 45 A. S. R.., 799), the Court says: “The testimony of' the appellant discloses that -at the moment he supposed he -was stepping upon the sidewalk he was not thinking of the hole through which he fell, but momentary forgetfulness is not necessarily conclu
The instructions as given embodied the law of the case, and as there was material evidence to support the verdict, the judgment is affirmed.