116 Minn. 17 | Minn. | 1911
Action for personal injuries caused by the defective condition of a sidewalk in defendant city. Plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment or a new trial.
Four contentions are made and discussed in the brief: (1) That the evidence affirmatively disclosed contributory negligence on the part of plaintiff; (2) that the evidence fails to show negligence on the part of defendant; (3) that the court erred in refusing a requested instruction to the jury; and (4) that the notice of claim 'of injury, given under section 768, K. L. 1905, was insufficient.
Our examination of the record leads to an affirmance. We find therein ample evidence of the defective condition of the sidewalk, and that this condition had existed for a long time prior to the injury to plaintiff, probably for several years. The long-continued existence of the defects was notice to the city, and rendered it liable for injuries resulting therefrom. While the complaint charged defendant with actual notice of the defect, the evidence disclosed only constructive notice. The point made that evidence of constructive notice was insufficient under the allegations of actual notice is not sustained. Constructive notice is included within actual notice, and in a case of this kind is sufficient under a pleading charging the latter. In other words the greater includes the less.
The claim of contributory negligence is based upon the contention that plaintiff knew that the sidewalk was defective, nevertheless made use of it. This is not conclusive against him. The evidence made the question one of fact. McKenzie v. City of Northfield, 30 Minn. 456, 16 N. W. 264.
There was no error in the refusal of the court to instruct the jury as requested by defendant. The request embodied a correct abstract proposition of law, and to the effect that, if plaintiff was injured in some way other than upon the sidewalk, he could not recover. The court had plainly told the jury that plaintiff’s right to recover was founded upon the negligence charged in the complaint, and sufficiently negatived the right to recover upon some other ground.
Order affirmed.
[Note] Liability of municipal corporation for defects and obstructions in street, see note in 20 L.R.A. (N.S.) 513, and as to contributory negligence as affecting liability of municipality for such defects and obstructions, see note in 21 L.R.A.(N.S.) 614.