Bohl v. City of Dell Rapids

• Decision Date: 02 July 1902
• Citation: 91 N.W. 315,15 S.D. 619
• Parties: BOHL v. CITY OF DELL RAPIDS.
• Court: South Dakota Supreme Court

91 N.W. 315

15 S.D. 619

BOHL v. CITY OF DELL RAPIDS.

Supreme Court of South Dakota

July 2, 1902

Appeal from circuit court, Minnehaha county.

Action by Dorthea Bohl against the city of Dell Rapids. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

G. R Krause and Bailey & Voorhees, for appellant. A. B. Kittredge Ralph W. Hobart, and Robertson & Dougherty, for respondent.

CORSON J.

This is an action for damages for injuries alleged to have been sustained by the plaintiff by reason of an alleged defect in the sidewalk in the defendant city. A verdict was directed by the court in favor of the defendant, and from the judgment entered upon this verdict the plaintiff appeals. A motion for the direction of the verdict was made on the following grounds: "First, the plaintiff has not produced any evidence of negligence as charged in the complaint, or otherwise; second, that it appears from the evidence of the plaintiff that she was guilty of negligence which contributed to the injury which she claims to have sustained; third, it appears from the evidence offered on the part of the plaintiff that there was another and safe way which the plaintiff might have taken on the night in question and escaped injury." Upon which ground the court granted the motion, does not affirmatively appear.

It is contended on the part of the appellant that the court committed error in granting the motion, for the reason that negligence on the part of the defendant, as well as contributory negligence on the part of the plaintiff, is a question of fact for the jury. It appears from the evidence that the injury to the plaintiff occurred near the junction of the sidewalk on Pearl street with that of State street. It further appears that the sidewalk on Pearl street was 8 feet wide, and extended across the street line of State street 10 or 12 feet, and that the sidewalk on State street was about 3 feet in width, and was constructed from 8 to 10 feet east of the line of State street, leaving a space between the sidewalk and the street line of several feet in width, and from 17 to 20 inches deep. Along the sidewalk between the line of State street and the sidewalk there was no railing or barrier to protect the open space thus made by the extension of the Pearl street sidewalk to the State street sidewalk. The manner in which the accident occurred is thus stated by the plaintiff: "I am the plaintiff in this action. Have lived in Dell Rapids four years this fall. Pearl street is the principal street in that city. On January 15, 1899, I attended the Scandinavian church, which is located on that street. *** I live a block and a half southeast from the church, on the south side of the railroad track. My husband went with me from church, and carried the baby. We went east and, when we got down to the corner where we turned to go south to our house, I turned a little too early, and stepped my right foot down in the hole in the ditch, and lit on my side. *** There is a street lamp across the street from where I was hurt. It was not lit that night. The night was dark. *** Pearl street runs east and west, and State street runs north and south, past my house, where we lived since October 10, 1898. I got hurt January 15, 1899. *** When coming along from church to this corner *** I stepped into this place between these two sidewalks. I had seen that place before. I think I went past there three or four times, and knew the hole was there. I knew it was there that night I was coming home from church. *** I went from the house to the church that night on the walk, right past this hole, and from that point to the church. I never walked up the street, instead of the sidewalk. I always used to go on the sidewalk. That walk does not go clear down to the railroad track. At the end of it were boards. We went on those. I knew the step was there, and knew it led down to the street. It is a rough, bad road. In coming back past this place my husband went four or five steps in front of me, and it was a very dark night, and he says, "Look out, mamma, you don't fall," and he had not spoken out before I was just falling. He said, "Look out, mamma," because there was a bad place. He told me to look out, and I was falling when he spoke. He had not done speaking to me before I fell. *** Yes; I knew it was a bad place, and I knew I was right near it when my husband spoke to me, and I knew I had to look out for it, and I could not see the walk. I remembered all about this place as I went past there, and remembered that it was a bad place. I thought that I had got past the bad place, and got down to the sidewalk leading south, and I hadn't got quite to the sidewalk. I was so near that my arm struck the walk when I fell. I hadn't quite got to the sidewalk leading down to the street when I thought I had, and stepped off between the walks into the space between the walks. It was right in the corner I went down. I walked down here [[[[indicating on the sidewalk going east], and thought I had reached that sidewalk [indicating the narrow sidewalk leading south on Exhibit C], and instead of that I stepped down into the place between the two walks, leading south. I knew that the step was there, and knew that it was there that night that I tried to go on this outside walk. The sidewalks themselves were not broken. They were whole. No boards loose, and hadn't been." It further appears that the two sidewalks had been in the same condition they were in that night for more than two years prior thereto.

It thus appears from the evidence that the plaintiff resided only a short distance from the corner on State street, where the accident occurred, and that the sidewalk had been in the condition that it was on that evening for two years or more, and that she was perfectly familiar with the manner in which the two sidewalks at that point were constructed. It is urged by the respondent in support of the ruling of the court that as there was no defect in the sidewalk itself, and the city was not required to construct a barrier or fence along the open area between the street line and the sidewalk, and was not by law required to light the streets, it was not, therefore, guilty of negligence, as to the plaintiff, especially, as she was familiar with the manner in which the sidewalks were constructed, and with the open space left between the sidewalk on State street and the line of the same. It is also urged on the part of the respondent that the plaintiff was guilty of contributory negligence, as, being familiar with the open space between the street line and the sidewalk, she should have exercised due care, which she must have failed to do. It is further urged in support of the court's ruling that the plaintiff being familiar with the construction of the sidewalks, and that there might be some danger in passing that open space when that corner was not properly lighted, she should have passed from Pearl street into State street by means of the street, and not have attempted to pass along the sidewalk.

Ordinarily the question of whether or not the defendant is guilty of negligence, and whether or not the plaintiff has been guilty of contributory negligence, are questions of fact, to be submitted to the jury. In speaking upon this subject Shearman & Redfield, in their work on the Law of Negligence, use the following language: "The question of negligence must be submitted to the jury as one of fact, not only where there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, but also where there is room for such a difference as to the inferences which might fairly be drawn from conceded facts. Where this is the case, the issue must go to the jury, no matter what may be the opinion of the court as to the value of the evidence or the credibility of the witnesses. So, if the issue narrows itself to a distinction between what is reasonably safe and what is not so, the question is emphatically one for the jury. It is for the court to say whether there is any evidence in the case from which negligence might reasonably be inferred, and then it is for the jury to say whether, from the facts thus proved, negligence ought to be inferred." Shear. & R. Neg. (5th Ed.) § 54. It will be observed that the rule as laid down in the section quoted is that it "is for the court to say whether there is evidence in the case from which negligence might...