Holm v. Village of Carver

Mitchell, J.

Action to recover for personal injuries caused by the defendant’s neglect to keep a sidewalk in safe condition for public travel.

An examination of the record satisfies us that upon the question of defendant’s negligence the evidence made a fair case for the jury, and that upon the question of plaintiff’s contributory negligence the most that could be claimed in behalf of the defendant was that the evidence also made a case for the jury.

There was no error in the court’s refusal to give the requested instructions numbered eighth and ninth, for the reason that they were substantially given in the general charge.

The only thing in the record that raises even a serious suggestion of error is the remark of the court in its general charge that “the fact that the plaintiff may in some way have contributed to the injury would not prevent her recovery if by ordinary care she could not have avoided the consequences to herself of defendant’s negligence.” That the court did not mean that plaintiff might recover notwithstanding that her own negligence contributed to the injury is clearly indicated by the last clause of the instruction itself. Although', perhaps, not very fortunately expressed, what the court evidently meant was that the mere fact that plaintiff contributed to the injury would not prevent her recovery, unless the contributory acts were negligent.

Probably the court had in mind the fact that plaintiff had previous knowledge that the sidewalk was out of repair, or possibly the fact that at the time of the accident she was carrying some articles in her hands or arms which made her more liable to fall when her foot went down through the broken plank.

(Opinion published 56 N. W, Rep. 826.)

Standing alone, the instruction might have been somewhat misleading, but, in view of the entire charge, it could not have been understood by the jury as meaning that plaintiff might recover notwithstanding some degree of contributory negligence. The court repeatedly and explicitly instructed the jury that to entitle her to recover she herself must have been in the exercise of reasonable care and caution, and had clearly defined what constituted reasonable-care; also that if plaintiff knew that the sidewalk was in a dangerous condition it was her duty, in passing over it, to use more than ordinary care and caution to avoid injury, and, if she failed to do so, she was guilty of contributory negligence, and could not recover. The other assignments of error are not of sufficient importance to require special notice.

Order affirmed.