Pitman v. City of El Reno , 2 Okla. 414 ( 1894 )

The opinion of the court was delivered by This is an action for damages for personal injuries, alleged to have resulted from a defective sidewalk in the city of El Reno, on the 12th day of September, 1893. Judgment for $10,000 is prayed for. The case was tried in the district court of Canadian county, on the 14th day of December, 1893. The jury was empaneled on the 14th day of December, 1893, and the plaintiff introduced all his testimony and rested. Thereupon, the defendant filed a demurrer to the evidence, which was sustained by the court. The case comes to this court on error. The only question necessary to consider is whether the court erred in sustaining the demurrer, discharging the jury, and rendering judgment for the defendant.

It appears from the testimony that the defendant in error is, and was, a city, duly incorporated at the time the injury occurred; that Bickford avenue was, at the said time, the principal thoroughfare of said city, in daily use by the public; that on the west side of said avenue, between the streets of Woodford and Russell, at, and before the time of the injury, there was kept and maintained a sidewalk; that in the month of September, 1892, and for a long time prior thereto, there existed in said sidewalk a defect, of which the defendant in error had due notice; that said defect consisted of an off-set in said walk, of about eight (8) inches, and between the high and low walk, there was a space of six or eight inches, not covered by plank or board, which space extended across the entire width of said walk; that on the 12th day of September, 1892, after dark, the plaintiff in error was passing along said street upon said sidewalk, and, while so passing, stepped into the said open space and fell in such a manner as to badly bruise the muscles of the posterior portion of one of his legs, from which injury he suffered much pain and was compelled to remain in doors for a period of about six weeks; that at the time of the injury, he had full knowledge of the existence of said defect, and of its danger and the exact location; that the time of the injury was after night; that his vision was dim and impaired; that the defect was in a dark place in the street where no light shown from the adjoining building; that at the time of the accident the plaintiff in error was looking for and seeking to avoid said defect; that he had been for a long time passing along said sidewalk every day attending to his business — that of a hotel keeper.

The case, we think, turns on one proposition. Was there sufficient evidence to sustain the judgment for plaintiff in error, or had a verdict in any amount, not excessive, been returned by the jury, could the court allow it to stand? If the evidence were insufficient to sustain a verdict in case one should have been rendered, then it follows that the court was correct in sustaining the demurrer. If, however, the testimony was sufficient, taking all as true, and drawing reasonable inferences therefrom, and excluding conflicting testimony, then it follows that the court erred in sustaining said demurrer and the case should be reversed.

Did the plaintiff have the right to pass along said street and walk, knowing, as he did, of the existence and location of the defect? The principal case relied upon, by defendant in error, is Wright vs. City of White Cloud, 55 N.W. Rep. 820, in which it is held that since the injured person had a present knowledge of the defect, the corporation was not liable for the injury. We doubt the correctness of this doctrine, as applied to the case at bar, and when the opinion is read, we hardly think the view, as a legal proposition, is maintained.

In the case cited, the defendant was a small town, in the northern country, and the action was for injury in falling on a path over a portion of sidewalk, which had not been properly cleared of snow and ice. The plaintiff knew in that case, that the place was dangerous and was herself to blame for exposing herself in that manner. The court, in the opinion, seemed to circumscribe itself, for fear of imposing too great a a burden upon small towns, in that climate, in keeping the walk clear in remote parts of the town, and thus held that the person injured was guilty of negligence, per se. In the text of the opinion, we find the following language:

"The general, if not the universal, doctrine is, that the duty of a city to exercise reasonable care to keep its sidewalks in safe condition, for travel, is not limited to structural defects, but extends also to dangerous accumulations of snow and ice. This is implied, if not decided, in Henkes vs.City of Minneapolis, 42 Minn. 530; 44 N.W. Rep. 1026. In this climate, and in this new state, the duties of cities with respect to ice and snow, must necessarily be somewhat limited, and care should be taken that they be not held to a degree of diligence beyond what is reasonable, in view of their situation. What reasonable care might require, in a milder climate, or in an older country, where cities are more compactly built, might put too high a standard in this climate for new cities, often embracing within their limits much territory that is more rural than urban."

The other cases cited by defendants in error are decided upon the same theory. In the case of the City of Centralia vs.Krouse, 64 Ill. 19, the court used the following language:

"Having undertaken to go where he knew it was positively dangerous, it must be held that he did so at his own peril. It was in daylight, and he could see that the walk was full of dangerous holes and was all covered with snow and ice, and it was culpable negligence in him to undertake to pass over it. It was probably dangerous for anyone and it was highly imprudent in one so far advanced in life to undertake to pass over the walk in its then condition, and covered, as it was, with snow and ice."

Another case, seeming to sustain the theory of the defendant in error, is that of Durkin vs. Troy, 61 Barb. 437, where it is held:

"Now, the foundation of the plaintiff's cause of action, if he had one, is that this piece of ice was a dangerous obstruction to the passage of those using the sidewalk for that purpose, which the city was bound to remove, and the danger consisted in the liability of those who stepped upon it to slip and fall. The obstruction was, therefore, one to be avoided by those using the sidewalk, and seeing, or being able to see, the ice; and if it could readily be avoided, the failure to avoid it, by one using the sidewalk, and plainly seeing the obstruction, must be accounted negligence."

In these cases, it seems to be the theory of the court that sidewalks covered with snow and ice are actually dangerous, and, in this, they are probably correct. There is a difference, however, between a defective place, which may result in injury, and one which is so dangerous that passing over it is nearly certain to result in injury. If the action of the plaintiff in error would, in the usual course of events, have resulted in injury, the court very properly sustained the demurrer. Contributory negligence is nothing more nor less than negligence on the part of the person injured, and the rules of law applicable to negligence of a defendant are applicable thereto. (Beach Contrib. Neg. 161.)

The fact that a person attempts to travel on a street or sidewalk after he has had notice that it is unsafe, or out of repair, is not necessarily negligence; but, of course, one cannot needlessly or recklessly run into danger. (Corbett vs.City of Leavenworth, 27 Kan., 675.)

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. (N.W. Rep. vol. 37, p. 575).

In the case at bar, the walk was a public thorough-fare, used by the entire public, daily, and we think the public was not bound, because of a mere defect in the walk to go around the block to avoid it, or even go on the other side of the street. We think all that is necessary in such a case is for the person passing such place to use ordinary care and caution to avoid being injured. In other words, we cannot think that the action of the plaintiff in error in passing along the same street used by other people continuously, and one which he was accustomed to use daily himself, without injury, was negligence per se; and when he simply used the same walk others did, it is a question, to be found from the evidence, if his injuries resulted from his own negligent acts, at the time of its occurrence. In the case of City Council of Montgomery vs.Wright, 47 Am. Rep. 423, we find the following language, which seems directly in point:

"It would seem legal truism to say, that it could not be deemed a want of ordinary care for the plaintiff to do what all other persons, similarly circumstanced, were in the constant habit of doing, without accident or injury to themselves, so far as is disclosed, which is set out in the bill of exceptions. There was ample room for the plaintiff to have safely passed between the fence and the washout, and his familiarity with the existence of the defect may have been an argument, in his own mind, inducing him to believe that he could pass it in safety. The possession of a walking-cane, with which he seemed to have felt his way along, when approaching the defective place, was a circumstance also favorable to the prospect of his safety. The plaintiff could not, we repeat, have been guilty of a want of ordinary care, prima facie, in selecting a route which was ordinarily traveled with safety by all pedestrians, going in the same direction. If he was guilty of contributory negligence at all, it was not in selecting the route, but in the want of care exercised in the act of walking after he had made the selection."

In the case at bar, the evidence shows, that at the time of the injury, the plaintiff in error was not only using ordinary care, but he was carefully seeking to find the defect.

In the case of Moultby vs. City of Leavenworth, 28 Kan., p. 747, Judge Brewer, speaking for the court, announces what we take to be the correct rule:

"And upon this, we remark in the first place, that the mere fact that the plaintiff knew the sidewalk was defective, did not prevent him from using it. The logic of a converse proposition would be this: that if all the sidewalks in the city are defective, and all the citizens are aware of it, no one could use a sidewalk, except at his own peril. The city would then absolve itself from all liability by making known its omission of duty. This is not the law. A city must discharge its duty of making its streets and sidewalks reasonably safe for public travel; and it does not necessarily release itself from liabilities to a traveller injured thereon, by mere proof that such traveler knew the condition of the street or sidewalk. As we said in the case of Corbett vs. Cityof Leavenworth, 27 Kan., 673, 'the fact that a person attempts to travel on a street or sidewalk, after he has noticed that it is unsafe, or out of repair, it is not necessarily negligence.' Now, in this case, the plaintiff was intent on business. While he knew the condition of the sidewalks, he was cautious in his actions. Ordinarily, a party is not obliged to forsake the sidewalk and travel in the street, for while thereby he would avoid one kind of risk, he would expose himself to another, towit: that of injury from passing vehicles. Besides that, the condition of a street, on a rainy night, is not such as to invite the steps of one traveling on foot. Neither is a party, although he is aware of the condition of the sidewalks, necessarily obliged to go around the block or travel by another street."

In the case, Village of Clayton vs. Brooks, Sup. Court of Ill., N.E. Rep., 574, this question is fully discussed and nearly the entire field of authority thereon is reviewed. The proposition would seem to be forever put at rest in this country on this authority. The court, in this case, says:

"Walking on a defective sidewalk at night, with knowledge that it is defective, is a circumstance tending to show negligence, but is not conclusive proof thereof." (90 Ill. 46 followed.)

Another strong case recently decided is the Town of Fowlervs. Linquist, 37 N.E. Rep., 133, Sup. Court of Ind., Howard, C. J., delivering the opinion.

In the opinion in The Village of Clayton vs. Brooks, we find this language:

"The mere fact that a traveler is familiar with the road, and knows the existence of a defect therein, will not impose upon him the duty to use more than ordinary care in avoiding it. * * * Such knowledge is a circumstance, and, perhaps, a strong one; but it should be submitted, with the other facts of the case, to a jury, for them to determine whether, with such knowledge, the plaintiff exercised ordinary care in proceeding on a way known to be dangerous, or, in proceeding, used ordinary care to avoid injury. * * * But the mere fact that the obstructed street was out of the way of the point at which the traveler was aiming, or that he might have taken a nearer way, is immaterial, as it is the duty of the town to repair all the streets. (Shear R. Neg. § 376. See, also, Erie City vs.Schwingle, 22 Pa. St. 384; Whittaker vs. West Boylston, 97 Mass., 273; Morrill, City Neg., 139). Nor does the mere fact that the plaintiff might have taken better and safer sidewalks than the one he did take, charge him with want of ordinary care. (City of Aurora vs. Hillman, 90 Ill., 61)."

The fact that a person injured by reason of a defective street could have taken another road, is no defense to an action against the town. (37 N.E. Rep., 133.)

In Osage City vs. Brown, 27 Kan., 74, an action against the city of Osage City to recover damages resulting from a defective sidewalk, the plaintiff recovered $550, and the city of Osage City took the case to the supreme court, and alleged among other errors, that the plaintiff was guilty of contributory negligence and therefore not entitled to judgment. It was alleged that, just prior to the injury, plaintiff was engaged in the business of teaming in said city; was near seventy years old; had occasionally traveled on foot over the defective sidewalk when going to the Masonic lodge, or when out trading.

On the night of the injury, he was on his way to the lodge; the night was cloudy, and consequently dark; was a little late, and walked somewhat briskly. His foot caught in the rise of off-set which was not covered, and held him so that he fell. The court then says: "From these facts, such negligence is not perceived on the part of the injured person as to prevent a recovery." The trial court instructed the jury, "That every person passing over the sidewalk of a city, is required to exercise such care and diligence in doing so, as men of ordinary care and diligence would use, under similar circumstances." In determining whether plaintiff used such care at the time he received the injury complained of, it would be proper to consider his knowledge of its condition; the time, the light or darkness at the time and place the injuries were received, and his manner of traveling and any other facts appearing from the evidence that would tend to show such care, or want of it;" and further charged them that if they found from the evidence that the plaintiff materially contributed to such injury, by such negligence, they would find for the defendant. The court says, this instruction given by the trial court was the true declaration of the law.

Upon the facts in proof in the case at bar, the court below unquestionably erred in finding from the evidence, as a matter of law, that the plaintiff in error could not recover, and in rendering judgment for the defendant.

The demurrer should have been overruled and the jury called to assess the damages under an instruction from the court that, upon the facts proved, the plaintiff in error was entitled to recover; or, under the authority, the court itself could have assessed the damages. (Lindley vs. Kelley, 42 Ind., 294;Strough vs. Gear, 48 Ind., 100.) This is the Indiana rule and as the code of that state was in force in this territory at the date the action was instituted, it is applicable and should be observed in this case.

The cause will be remanded to the court below with instructions to assess the damages in accordance with this decision.

By the Court: It is so ordered.

Justice Burford, who tried the case below, not sitting; all the other Justices concurring.