Hudon v. City of Little Falls

• Decision Date: 08 June 1897
• Citation: 71 N.W. 678,68 Minn. 463
• Parties: HUDON v CITY OF LITTLE FALLS.
• Court: Minnesota Supreme Court

68 Minn. 463

71 N.W. 678

HUDONvCITY OF LITTLE FALLS.

Supreme Court of Minnesota.

June 8, 1897.

(Syllabus by the Court.)

In an action for damages for personal injury to a traveler, claimed to have been caused by the negligence of the defendant city in failing to keep its sidewalk in repair, held, it conclusively appears from the evidence that plaintiff was guilty of contributory negligence, and therefore cannot recover.

Appeal from district court, Morrison county; D. B. Searle, Judge.

Action by Joseph Hudon, by his guardian ad litem, Vincent Hudon, against the city of Little Falls. Verdict for defendant. A new trial was denied, and plaintiff appeals from the judgment. Affirmed.

Lindbergh, Blanchard & Lindbergh, for appellant.

J. H. Rhodes, D. T. Calhoun, and E. P. Adams, for respondent.

CANTY, J.

This is an action for damages for personal injury alleged to have been caused by defendant's negligence in failing to keep the sidewalk on one of its public streets in repair. Defendant had a verdict. Plaintiff's motion for a new trial was denied, and he appeals from the judgment.

Appellant assigns as error the giving of different portions of the court's charge, a ruling on the admission of evidence, and another on a challenge to a juror; but, in our opinion, the evidence would not in any event sustain a verdict for plaintiff, so that, if any such error was committed, it was error without prejudice. Plaintiff was a youth of 15 or 16 years of age at the time of the injury. At that time he had traveled over the portion of the sidewalk in question four times a day on five days in the week, for four months, in going to and returning from school. The sidewalk consisted of two-inch planks, about six feet long, laid across the walk on stringers laid lengthwise on the ground. The planks were nailed to the stringers. The ends of the planks extended out about six or eight inches beyond the stringers. About four days before the injury plaintiff noticed, as he was going along the sidewalk, that one of the planks was loose. Two days later he stepped on the end of this plank when going along, and it tipped up. On the day of the injury plaintiff again walked out on the edge of the sidewalk. He again stepped on the end of this plank with one foot. It tipped or raised up, and the other foot went under the plank and was sprained and injured. This plank was about six or eight inches wide. As to how it occurred plaintiff testified as follows: “Q. How came you to be walking out on the end of the sidewalk? A. I didn't pay much attention where I was walking,-on the end or in the middle. Q. Were you clear out on the end? A. Not clear out. Q. How far from the end were you? A. Two or three inches from the end. Q. Was there any occasion for your getting out on the end there,-any reason for it? A. No, sir. Q. This was in plain sight as you...