168 N.W. 172 | N.D. | 1918
Lead Opinion
This is an action to recover damages for an injury alleged to have been received by reason of three boards having been removed from a sidewalk in the city of Wilton. The defendant appeals and argues error in the court’s failure to direct a verdict for the defendant. It claims:
“1. That there was no defective sidewalk.
“2. That even if there was such a defect, the plaintiff is merely guessing that her injury was caused thereby.
“3. That she was guilty of contributory negligence.”
We cannot hold as a matter of law that there was no proof of negligence on the part of the defendant. The proof shows that three boards were missing, and that the .opening was some 20 inches in breadth and from 2 to 5 inches in depth. It also show's that the lighting was more or -less inadequate. This was a defect in the structure of the sidewalk itself, and a defect for which the city was certainly responsible, if, indeed, it was responsible for sidewalks at all, and this responsibility is now generally recognized. See Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359.
Nor can we say as a matter of law that the plaintiff was guilty of contributory negligence because she had reason to believe that the sidewalk was out of repair and had therefore no right to walk thereon. It was the sidewalk which led to her home, and it does not seem that one must avoid such walks altogether. Ibid.; Jackson v. Grand Forks, 24 N. D. 601, 45 L.R.A. (N.S.) 75, 140 N. W. 718; Ouverson v. Grafton, 5 N. D. 281, 65 N. W. 676; 13 R. C. L. 475.
It is true that in the case of Moeller v. Rugby, 30 N. D. 438, 153 N. W. 290, we held that contributory negligence was shown as a mat
Nor can we say as a matter of law that the plaintiff was guilty of contributory negligence because at the time of the accident she was talking to her husband and did not notice the pitfall which was before her. The questions of negligence and of contributory negligence are primarily questions for the jury, and the burden of proving contributory negligence rests upon the defendant. Pyke v. Jamestown, supra.
Though there is proof that the plaintiff knew that the sidewalk was defective, there is no proof that she knew of the absence of the boards at this particular place; nor does she testify as to having noticed any such defect on her way to the opera house, on the return journey from which she was injured.
All that she testifies to is that prior to the accident she had noticed that the boards were loose; that sometimes someone would kick them out and then again you come along and they are all in. Sometimes one way and sometimes the other way. I never knew which ones were loose and which ones were not. A good many were loose. I noticed it. Sometimes they were in and sometimes not. I mean by that that I have seen from my window where someone was hauling a cart of water or a wheelbarrow, and a plank would be out, and they would lay them in, and then again someone would kick and stumble on the way and would throw them out. At times I saw holes there. The reason was those planks were out. I passed over the sidewalk after the 14th, on the evening of the accident, which was on the 18th. I had been to the picture show. The accident was about 10 o’clock. I fell in a hole in the sidewalk, that is the only sidewalk there was. I think we were carrying on a continuous conversation. We weren’t talking about the sidewalls. At the time I was walking along I didn’t notice any of the holes I am speaking of at the place of the accident. That is all I know about it. There was a hole there. I know it was a big hole as I was
Q. And you are quite certain there were not any holes before that that you came to ?
A. I didn’t have any trouble about that and I don’t think so. Before then I knew that there were holes in the walk from time to time. On the night of the accident I was walking along and the first thing I knew I had fallen. It was pretty dark and the light was pretty poor. The light at the corner was out. The light was back of me about a block and one half away or that block away and across the street behind.
Q. What was the condition of the street ahead of you ? Could you see the sidewalk cleai-ly?
A. No. I couldn’t. I could not have seen the sidewalk. Perhaps if I was. going along examining it, maybe I could. I could see the general line, where the sidewalk was. Sometimes the boards would be a little higher than the others, and sometimes one lapped over onto another.'
Q. Did you notice at that time whether there were any boards loose on the sidewalk?
A. I did not. There were about two or three blocks to the picture show. I knew it was a poor walk. The hole was about 5 inches.
Q. Now you had noticed it often, hadn’t you? Did you testify that you had seen people haul water carts along there and kick those planks out and then again they would be placed back ?
A. Of course watching those people. They would be some distance from my window.
Q. And you knew those locations of those places in the sidewalk?
A. Yes, sir.
Q. Now when you came along there that night you had in mind the condition of this sidewalk?
A. I don’t remember whether I had it just in mind.
Q. Did you say that you looked out for the bad places in the sidewalk, that you could look out for bad places in the sidewalk better alone than walking with someone?
A. Well, of course, in other parts of the walk, not just speaking of these, there would be places where one would pick her way along, but I don’t remember just at this time.
A. I was scared after I stepped into it.
Q. Hadn’t your husband been taking you previous to this ?
A. Yes, hut he didn’t have to help me along. Along these poor places each of us walked independently.
It is true that at the time of the accident she was talking to her husband and did not notice the pitfall that was before her. It is true that there is no rule of law that goes so far as to excuse the traveler from making such a use of his faculties as to preserve him from danger and to protect himself therefrom. “He cannot rely so far on the presumption that the municipal authorities have, done their duty and have kept the highway in repair, as to go blindly forward without looking ahead and taking the chances of getting along safely.” See Jackson v. Jamestown, 33 N. D. 596, 157 N. W. 475; 5 Thomp. Neg. § 6424.
It would seem, however, that a person injured by a defect or obstruction in a street does all that the law requires of him, when he observes ordinary or reasonable care, and it can hardly be expected of a person that he should keep his eyes glued to the sidewalk all of the time that he is walking thereon. See 13 R.C.L. 474. The fact that one knows that in the past some boards have been absent or loose in the sidewalk does not imply knowledge as to the exact location of all of them, or that they are absent at any particular place or time.
Nor does the fact that the plaintiff was at the time of the accident talking to her husband prove contributory negligence as a matter of law. The question is one of ordinary and reasonable care, and we can hardly say that the proof of such care was positively negatived in this case before us. All that is necessary is that one should walk with his eyes open, observing his usual course and in the usual manner. Earl v. Cedar Rapids, 126 Iowa, 361, 106 Am. St. Rep. 361, 102 N. W. 140.
This is not a case such as was presented to us in the casé of Jackson v. Jamestown, supra, for in that case the evidence disclosed that the plaintiff knew or should have known of the defect, that he paused in front of it after he saw or should have seen it, and then stepped backwards into it-.
Nor is there any merit in the contention of appellant that there is
' Opposed to it is the direct testimony of the plaintiff that she was hurt and jarred and felt sick and nervous immediately after the accident, and that soon after she reached home the amniotic fluid commenced to flow, ‘that she never recovered from the shock, and that on the Fourth of July her child was prematurely born.
Dr. O’Hare also testifies positively that accidents such as that encountered very frequently occasion miscarriages. It is also to be remembered that on the other .medical features of the case the testimony of Dr. Thompson was disputed by Dr. O’Hare.
The judgment of the District Court is affirmed.
Concurrence Opinion
I concur in the result.