Town of Gosport v. Evans

• Decision Date: 13 October 1887
• Citation: 13 N.E. 256,112 Ind. 133
• Parties: Town of Gosport v. Evans.
• Court: Indiana Supreme Court

112 Ind. 133

13 N.E. 256

Town of Gosport

v.Evans.

Supreme Court of Indiana.

October 13, 1887.

Appeal from circuit court, Owen county; Ambrose M. Cunning, Judge.

Geo. W. Grubbs, John C. Robinson, and I. H. Fowler, for appellant. Beem & Hickam, for appellee.

Mitchell, J.

The town of Gosport prosecutes this appeal from a judgment rendered by the Owen circuit court, in favor of Lydia E. Evans, against the appellant, for $1,000, that being the amount awarded the plaintiff by a jury, in an action for damages for injuries sustained from a fall upon an alleged defective and dangerous sidewalk. The argument for a reversal of the judgment is predicated mainly upon two propositions. It is contended (1) that there was no evidence which tended to show such a defect in the sidewalk, at the place where the plaintiff fell, as rendered the town liable to the imputation of actionable negligence; (2) that there was no evidence tending to show that the plaintiff was in the exercise of due care at the time she sustained the injury.

Concerning the first point, it is only necessary to say the evidence does not make it entirely clear that the town was guilty of such negligence in respect to the sidewalk in question, considering its condition at the time of the injury complained of, as would have sustained a recovery, even if the plaintiff had been without fault. While a municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in a reasonably safe condition for public travel, by night as well as by day, it is by no means an insurer against accidents, nor can it be expected to maintain the surface of its sidewalks free from all inequalities, and from every possible obstruction to more convenient travel. A contrary rule would or might burden municipal corporations beyond endurance. That a pavement may have become worn from use, or that bricks therein may have become loose or displaced by the action of the elements, so that persons are liable to stumble, or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the walk. City of Indianapolis v. Cook, 99 Ind. 10;City of Quincy v. Barker, 81 Ill. 300;City of Richmond v. Courtney, 32 Grat. 792;City of Chicago v. Bixby, 84 Ill. 82;City of Aurora v. Pulfer, 56 Ill. 270.

Adopting the language of the court in Hubbard v. City of Concord, 35 N. H. 52, 69 Amer. Dec. 520, to the case in hand: Towns are not required to make their sidewalks perfect, or to correspond with any given standard. In each case the sidewalk is to be pronounced sufficient or insufficient, according as it is or is not reasonably safe and convenient for the travel passing upon it, under the particular circumstances which exist in connection with that particular case. Accepting as true the evidence most favorable to the plaintiff below, and it appears that some of the bricks in a pavement had been displaced and removed, leaving a depression of from two and a half to six inches in depth, covering an area of about three by four feet in the surface of the walk. The authorities had notice of the condition of the walk, and had directed the owner of the abutting lot to repair the pavement. At the time of the injury complained of all the streets and sidewalks in the town were covered with snow, sleet, and ice, rendering them difficult and dangerous for foot-travelers to pass over. The depression above described had become partially, and some of the witnesses say completely, filled with frozen snow, sleet, and ice, presenting a surface not substantially different from that around it, except that it was perhaps somewhat lower. There was evidence tending to show that some of the bricks which had become loose and displaced were frozen fast in the snow and ice in and about the depression in the pavement, and that some of these projected some inches above the icy surface. The plaintiff, who was well acquainted with the defect in the walk, and who had it in mind at the time, while passing over the place in the night-time, struck her foot against one of the projecting bricks, which caused her to fall upon the icy pavement.

Since, therefore, it does not appear that the defective condition of the sidewalk occasioned an accumulation of snow and ice at that point, or made the surface of the walk substantially different there from what it was elsewhere, we are not prepared to say that, as respects its condition when the injury complained of was suffered, the city was remiss in its duty for not having removed the projecting brick which caused the plaintiff to fall. The fall was not occasioned by the plaintiff stepping in a hole, or slipping on ice accumulated therein, but by striking her foot against a brick which projected above the surface of the icy walk. If we should assume, however, that the walk was defective and dangerous at the time of the injury, and that the town neglected its duty in not repairing it, principles too firmly established to be departed from require that the judgment should be reversed nevertheless. The plaintiff was guilty of contributory negligence, and it is too well settled to require reference to authority that contributory negligence prevents a recovery in an action like this. It is disclosed in the evidence given on the stand by the plaintiff herself that she was returning home from church after the evening service in company with and by the side of another lady. She had passed over the sidewalk in question frequently. Quoting her own language, as we find it repeated again and again in the record of her testimony, she said: “I knew it was a bad place, but thought I could pass it. Had passed it before. * * * I put on old shoes, and socks over them. I put them on that night to go through this place safely, and for all other bad places. * * * I knew it was a bad place, but thought I had prepared for...