Quinn v. Stedman

• Decision Date: 07 June 1929
• Docket Number: Nos. 6621, 6622.,s. 6621, 6622.
• Citation: 146 A. 618
• Parties: QUINN et ux. v. STEDMAN. QUINN v. SAME.
• Court: Rhode Island Supreme Court

146 A. 618

QUINN et ux.

v. STEDMAN.

QUINN

v. SAME.

Nos. 6621, 6622.

Supreme Court of Rhode Island.

June 7, 1929.

Exceptions from Superior Court, Washington County; Arthur P. Sumner, Judge.

Separate actions by John Quinn and wife and by Agnes M. Quinn against William T. Stedman, T. T. Verdicts for plaintiffs, and defendant brings exceptions. Exceptions overruled, and case remitted to superior court for entry of judgment on the verdict.

James O. Watts, of Narragansett, for plaintiffs.

Benjamin W. Case and Benjamin W. Case, Jr., both of Wakefield (Hinckley, Allen, Tillinghast & Phillips, of Providence, of counsel), for defendant.

BARROWS, J. These were cases tried together. The cause of action alleged was negligence on the part of the town of South Kingstown in failing to keep a sidewalk in the village of Peace Dale "safe" for travelers, as required by Gen. Laws 1923, § 667, and sections 1364 and 1375. The wife's action was for personal injuries; the husband's for loss of services. The jury, after a view and hearing testimony of plaintiff, defendant closing its case without offering any testimony, found for the wife in the sum of $400 and for the husband in the sum of $200.

Both cases are here solely on exception to the refusal of the trial judge to direct a verdict for the defendant, because of asserted failure to prove any negligence on the part of the town. The ground urged in support of such motion was that the defect established was so trivial that no danger therefrom ought reasonably to have been anticipated by the town. 43 C. J. 1010.

The street on which the accident occurred was one of the most traveled public highways in Peace Dale. Plaintiff Agnes had been over it many times. On the day in question, January 3, 1928, at 2 p. m., the sun was shining, and plaintiff and her sister were walking along the sidewalk in front of Frederick Brown's residence. No ice or snow was on the walk, the traveled portion of which was of cement blocks five feet square, smooth, and in good condition. Plaintiff was on the side of the walk nearer to the Brown property, but exactly how far from the edge of the cement does not appear. Two adjoining cement blocks were not flush. On the inner side of the walk one was 1 1/4 inches higher than the other, creating a rectangular indentation. From this point the higher block, with difference in level constantly diminishing, followed the scoring line for two-thirds of its length, at which point the two blocks were level, and from that point the former higher block became increasingly lower until at the outer edge of the walk it was 1/4 inch lower. The cause of the inequality did not appear. The condition had existed for at least two years. Plaintiff had never noticed it, nor had the town officials, and no complaints had ever been made to them. Two witnesses testified to having stumbled but not fallen at the place in question.

The facts are strikingly like those of Grass v. Seattle, 100 Wash. 542, 171 P. 533 (1 1/8 inches), and Denver v. Burrows, 76 Colo. 17, 227 P. 840 (1 3/8 inches), in both of which the existence of such an irregularity was held as a matter of law not to constitute negligent upkeep by the town.

The liability of a municipality to keep its walks safe for travel is a statutory one. The requirement is only to keep them reasonably safe. Requirement of absolute safety would be an intolerable burden upon a municipality. Morgan v. City of Lewiston, 91 Me. 566, 40 A. 545 (2 1/4 inches); Kawiecka v. City of Superior, 136 Wis. 613, 118 N. W. 192, 21 L. R. A (N. S.) 1020 (2 inches). The town is not an insurer of the safety of its sidewalks. Dayton v. Glaser, 76 Ohio St. 471, 81 N. E. 991; Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401 (2 1/2 inches); Meridian v. Crook, 109 Miss. 700, 69 So. 182, L. R. A. 1916A, 482. Every possibility of an accident is not to be anticipated. The mere fact of an accident does not warrant an inference that the walk was not reasonably safe. The defect causing injury to a person to be actionable must be of such a character, in view of its location and the use made of the walk, that it has attracted the attention of town officers or should cause them if exercising due care to anticipate danger therefrom to a pedestrian. Hirst v. City of Missouri Valley, 193 Iowa, 1225, 188 N. W. 783 (2 to 3 inches). Prior accidents when the question of negligence is debatable are admissible to show that a defect is likely to cause accidents, but alone do not establish negligence in upkeep. Gastel v. New York, 194 N. Y. 15, 86 N. E. 833, 128 Am. St. Rep. 540, 16 Ann. Cas. 635 (1 inch); Terry v. Perry, 199 N. Y. 79, 92 N. E. 91, 35 L. R. A. (N. S.) 666, 20 Ann. Cas. 796 (1 1/4 inches).

Certain inequalities in walks are inevitable and such do not constitute negligent upkeep. Horton v. Cray (R. I.) 133 A. 811 (1 7/8 inches); Beltz v. City of Yonkers, supra. Negligence in keeping sidewalks safe is to be determined by what the town knew or ought to have known berore, and not after, a pedestrian falls. If reasonable men may differ about whether an accident ought to have been anticipated, the question of the town's negligence is a proper question for submission to a jury. Bieber v. St Paul, 87 Minn. 35, 91 N. W. 20 (1 1/4 inches).

In the case before us the trial court and jury saw the alleged defect. We have not this advantage, nor may we express our opinion on the weight of the evidence, because no motion for a new trial was filed. We know nothing of the trial court's attitude toward the verdict. We only know that the court considered the question of negligence one for the jury in the first instance.

The trial court distinguished the Horton Case from the present case by reason of the fact that the defect was a depression and in the present case was "a sharp raising up without any warning as far as the walk is concerned." Geer v. City of Des Moines, 183 Iowa, 837, 167 N. W. 635 (1 to 3 inches). We doubt whether the fact that the alleged defect is an elevation instead of a depression satisfactorily distinguishes the cases. Northrup v. City of Pontiac, 159 Mich. 250, 123 N. W. 1107 (1 1/2 inches). There may be the same danger in stepping into a depression on a walk where no depression is to be anticipated, as would exist in stubbing one's toe upon an elevation in a smooth walk where such elevation is not reasonably to be anticipated. Abruptness, however, of either an elevation or depression may have a bearing in determining whether the town used due care in the upkeep of its walks. Where to draw the line in negligence cases between questions of law for the court and those of fact for the jury is often a...