Heckman v. Evenson
| Decision Date | 06 December 1897 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Fisk, J.
Action by R. S. Heckman against P. S. Evenson to recover damages for personal injury. Verdict and judgment for plaintiff for $ 500 damages. Defendant appeals from an order denying him a new trial.
Affirmed.
F. H McDermont, W. E. Rowe, (H. Steenerson, of counsel,) for appellant.
The evidence shows that the surface of the stones in the street though uneven, were in such shape that traffic could be carried on over them more conveniently than before, and that horses stood on them daily. This unevenness is not such a defect as would render any one liable for an injury that might occur from stumbling on them. Raymond v. City, 6 Cush. 524, 53 Am. Dec. 57; Coombs v. Purrington, 42 Me. 332; Town v. Evens, 18 A. & E. Corp. Cas 275; Indianapolis v. Cook, 99 Ind. 10; Quincy v Baker, 81 Ill. 300; Richmond v. Courtney, 32 Gratt. 792; Chicago v. Bixby, 84 Ill. 82; Aurora v. Pulfer, 56 Ill. 270; Dubois v. City, 12 Am. and Eng. Corp. Cas. 630; Waggener v. Town, 26 S.E. 352; Grant v. Town, 42 N.Y.S. 107. Plaintiff was guilty of contributory negligence in jumping off the walk onto the stones without looking. Raymond v. City, 53 Am. Dec. 57; City v. Milner, 20 N.E. 235; Wright v. City, 55 N.W. 819; Howes v. District of Columbia, 2 App. (D. C.) 188; Howes v. District of Columbia, 22 Wash. Law. Rep. 41; Hudson v. City, 71 N.W. 678. Plaintiffs injuries resulted solely in consequence of an error of judgment on his part; for this defendant cannot be held responsible. Burr v. Plymouth, 48 Conn. 460; Alline v. LeMars, 18 A. & E. Corp. Cas. 262; Potter v. Castleton, 53 Vt. 435; Hill v. Scranton, 50 Am. Rep. 743; Pittman v. City, 46 P. 495; Perry v. City, 54 N.W. 225; Smith v. City, 63 N.W. 982; City v. Harrison, 19 S.E. 179.
O. A. Wilcox, for respondent.
Whether the facts impute negligence is a question for the jury, when the circumstances are such that men of ordinary prudence and discretion might differ as to the character of the act. Thomp. on Neg. 365. Alt. v. C. & N. W. Ry. Co., 5 S.D. 20, 57 N.W. 1126. If the facts and circumstances though undisputed are ambiguous and of such a nature that reasonable men might disagree as to the inference or conclusions to be drawn from them, the case should be submitted to the jury. Craig v. N.Y. Elev. Ry. Co., 118 Mass. 431; Greany v. L. I. R. Co., 101 N.Y. 419, 5 N.E. 425. A person is not guilty of contributory negligence in not being on the lookout for excavations on the street. City v. Isaacs, 3 S.W. 693; City v. Mizee, 29 P. 754; Ott v. City, 131 N.Y. 594; Veits v. Skinner, 47 Ill.App. 325. The traveling public have a right to suppose that there are no dangerous pitfalls in any part of the street, without a light or railing to guard the same. Durand v. Palmer, 29 N.J.L. 544; Wright v. Saunders, 58 Barb. 214, 3 Keyes, 323; Gordon v. City, 2 S.E. 727, 2 Thomp. Neg. 1199. The public have a right to use the whole street from side to side. Tiedman on Muc. Corp. § 300. Contributory negligence must be pleaded. Durand v. Palmer, 29 N.J.L. 544. It will not be presumed. Durand v. Palmer, 29 N.J.L. 544. It is a question of fact for the jury. Hanson v. Taylor, 8 At. Rep. 331; Orleans v. Perry, 40 N.W. 417; City v. Gore, 17 At. Rep. 144; Sandy Lake v. Foraker, 18 At. Rep. 609; Barr v. Kansas City, 16 S.W. 483; City v. Dolan, 31 N.E. 416; City v. Babcock, 32 N.E. 271; City v. Dale, 90 Ill. 46; Clayton v. Brooks, 37 N.E. 574; Dale v. City, 24 N.Y.S. 968; Lichtenberger v. Town, 58 N.W. 1058.
This action was brought to recover damages for a personal injury. There was a verdict for plaintiff, a new trial was denied, and defendant appeals. There is but little conflict in the testimony. The plaintiff was a farmer living a few miles from the town of Northwood, in Grand Forks County, and was in the habit of marketing his produce and doing his trading in such town. The defendant was the owner of a store building on the principal business street in said town. This street had been improved in such a manner that it was highest in the center, and sloped gradually from the center to the sidewalk, so that at the outer edge of the sidewalk the street was between two and three feet lower than the top of the sidewalk; at least, that was the condition along the block where defendant's store was situated. Rings had been fastened along the outer edge of the sidewalk for the accommodation of parties who desired to hitch their teams. The defendant caused two loads of stones to be placed in the street in front of his building. The stones extended for about fifteen feet lengthwise of the street, and from the edge of the sidewalk out into the street for two or three feet. The largest of these stones were not more than twelve inches in diameter, and the smallest were not more that one-fourth that size. It was nearly or quite two feet from the top of the sidewalk down to these stones. There is some conflict as to the condition in which these stones were left, defendant claiming that he practically covered them with dirt and gravel. The jury were warranted, however, under the evidence, in saying that they had been covered very little, if any, and that the surface was very rough and uneven. On the evening of October 20, 1895, the plaintiff drove his team up to the sidewalk at a point twenty to twenty-five feet north of defendant's store, and tied his horses to the ring in the walk, and went into defendant's store building, having some business with the man who occupied the same. It was dark, and the lamps in the store were lighted. Plaintiff did not know of these stones, but he knew, in a general way the condition of the street. His usual trading place was about a hundred feet north, where practically the same conditions prevailed, except as to the stones. It was his intention when he concluded his business to untie his team, and go directly home, and as it was already dark, he was presumably in something of a hurry. His testimony so indicates. When he left the store he walked directly out to the edge of the sidewalk. The light from the windows shone out on the walk, and into the street, but, of course, the street close up to the sidewalk was in the shade, so that objects could not readily have been observed. Plaintiff, however, makes no claim that he endeavored to see what was there. On the contrary, he says that when he reached the edge of the walk, without halting, he stepped down into the street. In so doing his foot struck upon a projecting stone in such a manner that his ankle turned and his leg was broken.
Whether or not the stones in the street, in the condition in which they were, or in which, under the evidence, the jury was warranted in saying they were, constituted a defect of which the plaintiff could legally complain, was a question for the jury. In other words, it was for the jury to say whether or not the defendant had, by placing the stones in the street, rendered it unsafe. Gerald v. City of Boston, 108 Mass. 580; Dowd v. Chicopee, 116 Mass. 93; Lane v. Town of Hancock, 142 N.Y. 510, 37 N.E. 473; Shear. & R. Neg. § 350, and cases cited. Cases can be found where courts have held, as a matter of law, that no recovery could be had for injuries resulting from certain defects or obstructions in the street. Raymond v. City of Lowell, 6 Cush. 524, Beltz v. City of Yonkers, 148 N.Y. 67, 42 N.E. 401; Grant v. Town of Enfield, (Sup.) 11 A.D. 358, 42 N.Y.S. 107. But these courts all admit that where, on the question of whether or not a given obstruction or defect renders the street unsafe, different minds might honestly reach different conclusions, such question must go to the jury, although there be no dispute whatever as to the character of the defect or obstruction. Upon this latter theory, even, it is clear that the question of the nature of the defect was for the jury in this case. Nor must this case be confounded with cases of accidental and temporary defects, which might arise by a brick working loose in a walk, or from an accidental block in the street,--things which ordinary prudence might not successfully guard against. In this case the obstruction, if such it was, was placed there purposely and in a manner to make it permanent in its character.
Nor do we find any error in the instructions of the court on this branch of the case. Numerous exceptions to the charge were taken, but most of them are too general for us to notice, and are abandoned in the assignment of errors. As to the other exceptions, it is sufficient to say that by no fair construction of the language used did the court at any time presume to tell the jury what particular fact or circumstance would render the street unsafe or dangerous, for the purpose of ordinary travel, by persons in the exercise of due care. That matter was studiously left to the determination of the jury, and we think the evidence was sufficient to warrant the jury in finding that the acts of the defendant had rendered the street unsafe, and from such fact negligence followed as matter of law.
It is strenuously urged, however, that plaintiff cannot recover, by reason of his contributory negligence. It is claimed that his act in stepping from the sidewalk to the street in the dark and without stopping to examine the condition of the street into which he was stepping, and without halting or taking any precautions for his safety, was, per se, such an act of negligence as bars his recovery. We can perceive no sufficient reason for entering, at this time and in this case, upon any lengthy discussion of the law relating to contributory negligence. The matter has certainly been exhausted, and by writers...
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