30 Minn. 456 | Minn. | 1883
It was held in Estelle v. Village of Lake Crystal, 27 Minn. 243, and in Kelly v. Southern Minn. Ry. Co., 28 Minn. 98, that previous knowledge that a street or crossing-was out of repair does not conclusively establish contributory negligence on the part of a person travelling over it, and who is injured in consequence of its unsafe condition. And this, we think, substantially disposes of the principal point in this case. The plaintiff had been accustomed to pass over a sidewalk in the city of Northñeld, in going to and fro from his house, daily for several years. A portion of this walk near his house, made of old materials, had been for a long time out of repair, of which the defendant had notice. The walk was four feet wide, made of plank, laid lengthwise upon sleepers raised up from the ground, leaving a space of a foot or more between them and the
While all the circumstances were proper for the jury to consider on this question, it was not so plain a case that any danger would result to plaintiff from passing over the walk with the care which the evidence shows he was accustomed to exercise, and did exercise at that time, as to warrant the court in saying, as matter of law, that he did not exercise ordinary prudence in venturing upon it, or that he was guilty of contributory-negligence. Evans v. City of Utica, 69 N. Y. 166; Mehan v. Syracuse, etc., R. Co., 73 N. Y. 585; Estelle v. Village of Lake Crystal, supra. And see Kelly v. South Minn. Ry. Co., supra, and cases cited.
The court properly submitted the Gase to the jury, and the order denying the new trial should be affirmed.