Nicholas v. Peck , 21 R.I. 404 ( 1899 )

When this case was previously before the court I reluctantly acquiesced in the opinion which was then given. Upon the re-argument of the case, however, I am so fully convinced that the decision was wrong that, with all due respect to the judgment of the majority, I must dissent therefrom.

Whether the plaintiff was guilty of contributory negligence in traveling on the highway, knowing of the existence of the defect, was a question of fact for the jury. They have decided this question in the negative, and there is evidence to sustain their finding.

The law is perfectly well settled that the mere fact that one knows of a defect in a highway does not prevent him from recovering for injuries sustained while traveling thereon.Hampson v. Taylor, 15 R.I. 89; Bullock v. New York, 99 N.Y., 654; McGuinness v. Worcester, 160 Mass. 272; Griffin v. Auburn, 58 N.H. 121; Henry County Turnpike Co. v. Jackson,86 Ind. 111; Chilton v. City of St. Joseph, 44 S.W. Rep. 766;McPherson v. Buffalo, 43 N.Y.S. 658, and cases cited. The only effect which such knowledge has is to call for the exercise of a higher degree of care in using the highway than would be required if the existence of the defect was not known. If one knows that a highway is defective in a given locality, he is not thereby necessarily debarred from using it. Indeed, it may be and frequently is absolutely necessary to use it in order to get to and from his home and attend to his business. But when using it he must exercise care commensurate with the danger — such care as a prudent man would exercise in like circumstances. And having done this, if he is injured, he is entitled to recover. "The question is not, in any case, whether the traveler knew of the defect and might possibly have stopped or avoided it; but whether he had reasonable cause to think that he might escape from it by the means which he adopted, and used reasonable care in making the attempt." Thomas v. TelegraphCo., 100 Mass. 158. If, in a given case, it is perfectly clear that a man of ordinary prudence would not have done as the plaintiff did, or, in other words, if the conduct of the plaintiff was such as to necessarily show negligence on his part, it is proper for the court — indeed, is its duty — to give a binding instruction to the jury in favor of the defendant. And in case this is not done, and there is a verdict for the plaintiff, the duty of the appellate court is to set it aside. But if, on the other hand, there is uncertainty or doubt as to the question of contributory negligence, and the evidence is such that fair-minded men might honestly differ upon this question, the court, even though it might have found differently upon the evidence, has no right to interfere, but must allow the verdict of the jury to stand. And this is so even in cases where the facts are undisputed. Rhoades v. Varney, 91 Me. on p. 226; Beach. Contrib. Neg. § 450, and cases cited. If there are inferences to be drawn, it is the province of the jury to draw them. If there are probabilities to be considered, they are also for the jury. In short, it is only when the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence becomes a question of law for the determination of the court. McLeod v. Ry. Co., 104 Ia. 142;Railroad Co. v. Stout, 17 Wall. 657; Grand Trunk Ry Co. v.Ives, 144 U.S. 417; Richmond Ry. Co. v. Powers, 149 U.S. 43;Bunnell v. Bridge Co., 66 Conn. 24; O'Neil v. Town ofE. Winsor, 63 Conn. 150; Crites v. City of New Richmond, 73 N.W. Rep. 322. This doctrine has been repeatedly announced by this court (Boss v. Prov. Worcester R.R., 15 R.I. 149; Hampson v. Taylor, 15 R.I. 83; Clark v. ElectricLt. Co., 16 R.I. 463; Elliott v. Railway Co., 18 R.I. 711;Sauthof v. Granger, 19 R.I. 606) and, would seem to be as definitely settled as any principle in the law of negligence can be.

In the recent case of Powell v. Ashland Iron Steel Co.,98 Wis. 35, the court holds that unless the evidence conclusively shows contributory negligence on the part of the plaintiff, the case is exclusively for the jury. Marshall, J., in delivering the opinion of the court, says: "The general rule is too firmly established and well understood to require discussion here, to the effect that unless the proof of contributory negligence is so clear and decisive as to leave no room for unbiased and impartial minds to come to any other conclusion, or, as it is sometimes said, so clear and conclusive as not to admit, reasonably, of any opposing inference in unbiased and unprejudiced minds, the proper inference to be drawn must be determined by the jury." See alsoWood v. City of Danbury, 43 Atl. Rep. 554; Detroit Ry. Co. v. Van Steinburg, 17 Mich. 99.

The evidence offered in the case at bar was not such as to necessarily show that the plaintiff was negligent. It appears that the defect in the highway consisted of a washout, or depression, which was filed or partly filled with stones — that is, as I understand it, the earth had been washed away, leaving some stones bare in the depression or hollow. The plaintiff knew of this defect, and testifies that she was endeavoring to avoid it; that just as she came near it a stone, which she had not before observed, caused her to stumble, and that in trying to recover herself she caught her foot against a hooked stone in said depression, which threw her and caused the injury complained of. In view of testimony to this effect, it cannot properly be said that the necessary inference is that the plaintiff was guilty of contributory negligence. The case was fully tried by able counsel. Mr. Justice Douglas carefully and correctly instructed the jury upon the question of contributory negligence; it was not a case in which a nonsuit could properly have been granted or a verdict directed by the court, and, the jury having found in favor of the plaintiff, I think the verdict should stand. A verdict should not be set aside unless it is so palpably and manifestly wrong or so clearly against the evidence as to warrant the presumption that the jury was influenced by passion, prejudice, or other improper motives. 14 Ency. Pl. Pr. 777; Sweet v. Wood, 18 R.I. 386.