Town of Cody v. Soth

• Decision Date: 08 February 1927
• Docket Number: 1336
• Citation: 252 P. 1021,36 Wyo. 66
• Parties: TOWN OF CODY v. SOTH [*]
• Court: Wyoming Supreme Court

252 P. 1021

36 Wyo. 66

TOWN OF CODY v. SOTH ^[*]

No. 1336

Supreme Court of Wyoming

February 8, 1927

ERROR to District Court, Big Horn County; PERCY W. METZ, Judge.

Action by George P. Soth against the Town of Cody. Judgment for plaintiff, and defendant brings error.

Reversed and Remanded.

Dwight E. Hollister, and Thomas M. Hyde and H. C. Brome, for plaintiff in error.

The instructions given by the court allowed the jury to find that plaintiff was exercising ordinary care and diligence at the time of his injury; there is no evidence in the record supporting a finding of that kind, therefore the instructions are erroneous; the law respecting the duty of cities and towns with reference to the maintenance of sidewalks, and the duty of pedestrians using them, is well stated in 21 L. R. A N. S. 614; see also, 28 Cyc. 1419-1428. A traveler passing over a defective sidewalk, with knowledge of another route equally convenient, in the same direction, without defects is guilty of negligence that will defeat recovery; Gibson v. City, 133 N.W. 712; Wright v. City, 55 N.W 819; Waldman v. Skrinka Co., 233 S.W. 242; Smith v. Shamokin, 110 A. 640; Isley v. Kansas City, 237 S.W. 873; Spiker v. Ottumwa, 186 N.W. 465; City v. Edwards, 77 So. 841; Osborne v. City, 197 Ill.App. 267. Plaintiff may recover only upon the allegations of his petition; Drown v. Co., 81 N.E. 326.

E. E. Enterline, C. A. Zaring and Rockwood Brown, for defendant in error.

Defendant had a right to move for a judgment notwithstanding the verdict; 5897 C. S. Plaintiff's evidence established negligence; Puckett v. Sherman, (Mont.) 205 P. 250; Mitchell v. Ry. Co., 208 P. 903; Johnson v. Ry. Co., 230 P. 52. The motion invoked no element of discretion; Midland R. Co., v. Gibson, 221 P. 100. It is only when, as a matter of law, there is neither evidence nor reasonable inference from evidence to sustain the verdict that a motion non obstante veredicto will be granted; Groundwater v. Town, 160 P. 1055; Woolen v. Sloan, 162 P. 985; Murry v. City, 165 P. 895; Worthy v. Co., 195 P. 222; Campbell v. Weller, (Wyo.) 164 P. 881. Contributory negligence must be pleaded as a defense; C. B. & Q. Ry. Co. v. Cook, 18 Wyo. 43. Contributory negligence of plaintiff, presupposed negligence of defendant; Birsch v. Co., (Mont.) 93 P. 940; Phillips v. Classen, 219 P. 708. The defects in the sidewalk warrant recovery; City v. Wells, (Okla.) 191 P. 186; City v. Davis, 55 P. 492; Sheron v. City, 257 Ill. 458; Kansas City v. Bradbury, (Kan.) 23 A. S. R. 371; Leonard v. City, (Mont.) 65 P. 425; Dillon on Municipal Corporations, Secs. 1025-1027; Cartano v. City, (Ore.) 176 P. 789. Negligence is failure to do what a reasonable person would do under the circumstances; Baltimore Ry. Co., v. Jones, 95 U.S. 439; Yeager v. Town, (Ia.) 88 N.W. 1095; City v. Carroll, (Va.) 40 S.E. 37; Ohliger v. City, (Ohio) 10 O. C. D. 762. One knowing the defective condition of a sidewalk may use it, even after dark, without contributory negligence; Schmidt v. Town, (Wis.) 159 N.W. 724; City v. Kubler, 133 Ill.App. 520. At any rate, it was a question for the jury; Higginbottom v. Village, (Miss.) 74 So. 133; City v. Ebenschweiger, (Ky.) 188 S.W. 946; Maki v. City, (Minn.) 133 N.W. 80; Winship v. City, (Mass.) 87 N.E. 600; Mayhood v. City, 103 N.Y.S. 856; Cook v. Town, (Ia.) 112 N.W. 157; Richmond v. City, 190 Ill.App. 227; Neeley v. Town, (Ia.) 117 N.W. 981; Hill v. City, (Mo.) 128 S.W. 214. One is not obliged to keep in constant mind every peril that might possibly arise from defective sidewalks; Robinson v. City, (Wis.) 142 N.W. 125. Knowledge of the defect does not preclude recovery; City v. Chrisman, (Ill.) 54 N.E. 997; City v. First, (Ind.) 53 N.E. 246; Belvea v. City, (Mich.) 99 N.W. 740. The foregoing is supported by the overwhelming weight of authority; it is not negligence to walk upon a street, which one can see is out of repair; Langbein v. Swife, 121 F. 416; City v. Secrest, (Ky.) 75 S.W. 268; Pitman v. City, (Okla.) 37 N.E. 574. It is merely a circumstance to be considered by the jury; Murphy v. City, 83 Ind. 76; Barr v. City, (Mo.) 16 S.W. 483; City v. Witman, (Ind.) 23 N.E. 796; Dahmer v. Ry. Co., (Mont.) 136 P. 1059. Mere opinion of the court, that a verdict is excessive, does not justify interference unless it appears to have been the result of passion or prejudice on the part of the jury; Hollenbeck v. Corporation, (Mont.) 129 P. 1058; Mullery v. Ry. Co., (Mont.) 148 P. 323. There is no presumption of passion or prejudice in arriving at a verdict; Yergy v. Co., (Mont.) 102 P. 310; Badboy v. Brown, 213 P. 246. Assessment of damages is for the jury; Rice v. City, (Ia.) 100 N.W. 506; Jensen v. Co., (Utah) 138 P. 1185. Judgments entered upon conflicting evidence will not be disturbed; McFadden v. French, 29 Wyo. 401; Wettlin v. Jones, (Wyo.) 234 P. 515; Carlson v. Schmidt, 21 Wyo. 498.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

This is an action brought by George P. Soth against the Town of Cody, for an injury claimed to have been sustained by him by reason of a defective sidewalk in said town. The case was submitted to a jury, which returned a verdict in favor of plaintiff in the sum of $ 10,000. This verdict was reduced by the court to the sum of $ 7,000, and judgment was rendered for plaintiff on April 13, 1925, in that amount. From this judgment the town has brought this case here by petition in error. The parties will be referred to herein as in the court below.

On the night of July 29, 1916, the plaintiff was living on Third Street in the town of Cody. About midnight, he heard a fire alarm. He got out of bed, saw flames at the Irma hotel--three blocks away from where he was living--and claims to have heard calls for help. He ran to the fire and in doing so traveled along the sidewalk on the east side of Third Street, where he was accustomed to go, and a short distance after passing the alley in the block in which he was living, he tripped and fell and sustained the injury for which he subsequently sued in this action. He testified that he stepped into a hole left by a broken board in the sidewalk, and that he had known of this defect and danger in the sidewalk for a period of a year or more, during which time he had each day observed and seen it. He claims that he ran and that he thought of nothing except the fire at the Irma hotel and of the persons who had cried for help. He was corroborated in his testimony as to the defect in the sidewalk by the witness Tyler, at whose place the plaintiff was rooming. This witness also went to the fire, and, as we understand the testimony, instead of taking the sidewalk above mentioned, took the street and then a path which led to the Irma hotel. The testimony shows there was a path in the unoccupied block west of where plaintiff was living and in the block north thereof, which path led diagonally to the Irma hotel. The condition of this path is not clearly shown. Third Street, inside of the sidewalks, was, however, shown to have been in good condition, to the knowledge of plaintiff.

1. The defendant asked the court to give the following instructions, which the court refused to do:

"If plaintiff was guilty of contributory negligence, that is, if, having his choice of two routes, one safe and unobstructed and the other defective and dangerous, he knowingly selected a defective and dangerous route, then he cannot recover in this action, even though you should find from the evidence that the sidewalk in question was defective and the city negligent in their care and maintenance."

Another instruction of similar import was also asked, but refused. The general principle above stated, though ordinarily expressed somewhat differently, appears to be recognized by all the authorities without exception. McQuillan, Municipal Corporations, sec. 2828; Thompson, Commentaries on Negligence, sec. 6273; Elliott, Roads and Streets, sec. 1154; Sherman & Redfield (6th ed.) on Negligence, sec. 376; Beach, Contributory Negligence, (3rd ed.) sec. 247; 28 Cyc. 1428; Note 21 L. R. A. N. S. 659-661. In fact the asked instruction, above set out, seems to closely follow what is said in the first portion of sec. 2828 McQuillan, supra, where it is said:

"It is well settled, that a traveler who knows, or as an ordinarily cautious person ought to know, that it is dangerous to pass over defective drive-ways, crosswalks or sidewalks and does so, although he might have taken another path or course in the same direction, is guilty of such negligence as will defeat recovery for damages in event of injury caused by the dangerous condition of the way."

The instruction asked would make it contributory negligence as a matter of law if a traveler would pass over a sidewalk which he knows to be defective and dangerous. We think that, in this, according to the weight of the authority, it went somewhat too far. Every defect is dangerous to some extent, and the cases are unanimous that a man cannot be held to be negligent as a matter of law because he passes over a defective walk with knowledge of the defect. The instruction asked leaves out of consideration the seriousness or imminency of the danger, or, as some of the authorities put it, the fact, that a traveler, to bar recovery because of contributory negligence, must not alone have knowledge of the defect and danger of a path, but must also appreciate this danger and must know, as an ordinarily prudent person, that it is imprudent to travel over such path. Gibson v. Denison, 153 Iowa 320. 133 N.W. 712, 38 L. R. A. (N. S.) 644.

It is said in Thompson on Negligence, sec. 6273:

"One who with full knowledge of the defective condition of a sidewalk, crosswalk or roadway, and of the risks incident to...