Pinches v. Village of Dickens
| Decision Date | 25 May 1934 |
| Docket Number | 28878 |
| Citation | 254 N.W. 877,127 Neb. 239 |
| Parties | MARGARET PINCHES, APPELLANT, v. VILLAGE OF DICKENS, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
1. Evidence examined and held sufficient to sustain the verdict, and that plaintiff was not guilty of contributory negligence as a matter of law.
2. Bainter v. Appel, 124 Neb 40, 245 N.W. 16.
3. A person is not guilty of contributory negligence as a matter of law in a suit against a village for injuries sustained on account of a defective way simply because he could have walked at another place, nor because he had been over the same route, but walking in an opposite direction, a short time before.
4. Previous notice of a defect in a walk will not constitute sufficient contributory negligence to bar recovery as a matter of law for injuries received on account of the defect.
5. The burden of proof of contributory negligence is ordinarily on the defendant.
6. The care required of a pedestrian in walking over a traveled way does not mean that he must go around the obstruction or defect, but in passing over it he must use some care and caution beyond the ordinary care exercised by a person walking upon a sidewalk, knowing of no defect therein.
7. Ordinarily, all questions of negligence and contributory negligence are for the jury.
8. Where the testimony shows that there was an accumulation of dé bris and rubbish mixed with snow and ice on a way generally used by pedestrians, in consequence of which the plaintiff fell and sustained severe injuries, the question whether the village was negligent in failing to remove the obstruction is one of fact, to be determined by the jury from all the circumstances of the case.
9. The question whether a way was defective or in an unsafe condition is generally one of fact and not of law.
10. Contributory negligence cannot be imputed to plaintiff as a matter of law from the mere fact that he attempts to cross over a walk upon which there is an accumulation of dé bris, trash and other substances, provided he was walking at a place generally used by pedestrians, and where on account of the complete obstruction of the sidewalk it was necessary, in order to reach his destination, for the pedestrian to turn off into such walkway.
11. The fact that an accident did not happen on a sidewalk will not bar a recovery if the place where it did happen was customarily used as a walkway to the knowledge of the defendant village.
12. If the verdict is not excessive, it will not be set aside because it is larger than the amount prayed for, especially where the claim filed against the village was in excess of the amount of the verdict, but the plaintiff will be permitted to amend her petition to conform to the proof by praying for the amount awarded to her by the verdict.
13. At a place where a sidewalk was completely obstructed by a stairway, the plaintiff in order to reach her destination turned off into a drain or gutter following a route ordinarily used by pedestrians. She had been over the same route walking in an opposite direction a few minutes before. In the drain at the place where she turned off was an accumulation of dé bris, trash, leaves, muresco, snow and ice. It was not shown that she noticed any dangerous condition when she passed over the walk a few minutes before. She was walking in an ordinary manner and appears to have been observing due care. Held, that she was not guilty of contributory negligence as a matter of law, and that the verdict of the jury in her favor, which was set aside by the district court, should be reinstated.
Appeal from District Court, Lincoln County; Tewell, Judge.
Action by Margaret Pinches against the Village of Dickens. Verdict for plaintiff. From a judgment entered on a directed verdict for defendant, plaintiff appeals.
Judgment reversed, and cause remanded, with directions.
E. H. Evans and Urban Simon, for appellant.
Beeler, Crosby & Baskins, contra.
Heard before ROSE and PAINE, JJ., and LIGHTNER, REDICK and THOMSEN, District Judges.
This is a suit by Mrs. Margaret Pinches for injuries on account of defects in the walkway of defendant village. She prayed damages in the sum of $ 2,500. The jury awarded her $ 3,000, but the district court set aside the judgment, sustained defendant's motion for a directed verdict, and plaintiff has appealed.
Plaintiff, who at the time was about 45, was injured on March 15, 1932, while crossing a gutter or drain. On that day she had been moving from the block northwest of the principal intersection of Dickens to the southeast part of the block southeast of the intersection. Dickens is a small place of only 135 inhabitants. She had made a number of trips, her usual route was to go south from where she had been living to the intersection, then eastward on the middle of the street until she got back of what is known as "Falk's store," which is on the northwest corner of the block she was moving to, and then cut south through some vacant property and the alley to her new abode. Her brother, Rex Brown, was assisting her with a team and wagon. Shortly after noon, plaintiff needed a short length of stovepipe. The hardware store where she could purchase it is immediately west across the street from Falk's store. She left her new location to get it. In returning with this pipe she did not follow the route she had been using earlier in the day, because the hardware store is on the south side of the street, but after getting the stovepipe, an 18-inch length, she went directly east across the street and on the sidewalk along the north side of Falk's store. Connected with this sidewalk and immediately north of it is the gutter in which she was hurt. The sidewalk is three feet wide and the gutter is five feet five inches wide. After the sidewalk runs about thirty feet east from the northwest corner of Falk's store, it is completely obstructed by a stairway which rises toward the east along the side of Falk's store to a platform where doors open to the south into a hall. Persons wanting to proceed eastward must turn off of the sidewalk and cross the gutter at this point. The gutter was commonly used by pedestrians coming from or going toward the east, and on the south side of the street east of Falk's store is a row of hitching posts, and people who tied their teams at such posts would cross the gutter and come westward over about the same route to the main intersection of the village. This drain begins flush with the sidewalk and slants downward for three feet two inches to a total depth of six inches and then slopes upward for two feet two inches where it meets the traveled portion of the street. However, just before the drain reaches the place where the stairway begins to rise, it falls at a sharper angle than the sidewalk, leaving an abrupt step-off of three or four inches near the stairway. It was at her second step after turning north to cross the drain where plaintiff fell and was hurt. It appears from the evidence that in going to the hardware store for the pipe she had passed over the same route, but of course in the opposite direction. Plaintiff alleges that defendant failed to keep said ditch in proper condition to allow water and melted snow to drain off, but permitted ashes and other refuse to accumulate in said drain, causing water from melted snow to back up and freeze, forming ice in said drain at the point where the stairs met said sidewalk, creating a dangerous, unsafe and slippery condition, and that, while in the proper exercise of due care and caution, she passed out and around the wooden stair-case and into the concrete gutter and in so doing slipped on the ice and was injured. It appears from the evidence that her hand was badly cut on a glass jar, which was lying with other debris at the place where she was hurt. Plaintiff claims that the dangerous condition had existed long enough to give the village both actual and constructive notice. The answer of the village denies that the drain-way was faultily constructed, denies that it knew that the drain-way was used for a passageway or sidewalk, and denies that it knew of the accumulation of debris referred to by plaintiff and alleges that plaintiff's injuries were through her own lack of care and caution and due to gross negligence on her part.
The court fully and fairly instructed the jury as to all questions of negligence and contributory negligence, actual and constructive notice, and all other questions in the case. A careful examination of the instructions convinces us that there is no error in them. The ruling of the court is to the effect that plaintiff was guilty of contributory negligence as a matter of law. While the district court did not so hold, defendant also seeks to uphold the ruling of the court on the ground that the village authorities did not have notice, actual or constructive, of the alleged dangerous condition of the drain.
The principle to be applied in testing the action of the district court has often been stated, and was again stated on February 27, 1934, in La Fleur v....
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