Nicholas v. Peck

Stiness, J. The plaintiff asks for a re-argument of the petition for a new trial, decided in 20 E. I. 533. The decision was based upon the undisputed fact that the alleged defect-in the sidewalk was that some stones stood up where dirt had been washed from them near the fence on the lin’e of the street; that the plaintiff knew about the stones and was so familiar with them that she was able at the trial to describe the one over which she stumbled, without having seen it afterwards; that there was ample room on the sidewalk— over two-thirds of its width—to have passed with perfect safety, and that the accident happened about noon of a bright day. Upon these facts, with nothing to show why she was walking near the fence, where she said she knew it was unsafe, rather than 'farther out where she knew it was safe, with nothing to distract her attention or confuse her judgment, we held that the necessary inference was that she *405 stumbled over the stones because she was not looking for them, as she was bound to do if they were dangerous and she knew of the danger, and hence that the verdict was against the evidence in the finding that she was in the exercise of due care. The first point set out for a re-argument is that the question of the plaintiff’s contributory negligence was not argued at the hearing. This is not so. Six pages of the defendant’s brief, and the bulk of its argument, was on this very point. It is true that the plaintiff’s counsel did not refer to it, possibly for the reason that there was nothing to say. At any rate, the point was made and what there was to say should have been said then. (1) Another point is that this is not a case where contributory negligence should be determined by the court as a matter of law, because the peril was not of such great and unusual character as to amount to foolhardiness, like crossing a railroad track without looking, and cases , of that kind. The opinion was based upon undisputed facts, which were not varied by any other facts, and in this way a question of law is clearly raised. The point comes to this-: that there was danger enough to charge the town with negligence in not repairing the walk, but not danger enough to charge the plaintiff with negligence in walking over it when she knew its condition. Under such circumstances due care is correlative. A condition that will chaige one party with notice-must charge the other equally, and there is no gradation of peril, such as is suggested, which requires a court to say that deliberately walking into a known danger, without excuse, cannot he regarded as contributory negligence. *406 (2) *405 Another point is that, as the question of contributory negligence was left to the jury without objection and decided by them, this court cannot nullify their action. In support of this proposition Clarke v. Electric Lighting Co., 16 R. I. 463, is cited, in which this court said : “ Generally the question of negligence is a question of fact to be determined by the jury ; but sometimes, when there is no controversy as to the facts, and when it clearly appears from them what course *406 a person of ordinary prudence would pursue, it is a question for the court.” That is this case. The numerous other cases-cited show that the plaintiff has overlooked the point of our-decision, which was that the verdict was against the evidence. Nearly all of the' cases cited were on exceptions, and, of course, a court does not say that a plaintiff was not in the-exercise of due care, or that a verdict is against the evidence,, on a bill of exceptions. In all of them there was some complication which called for the judgment of a jury, such as-darkness, ice and snow, danger not apparent, a rotten board, the shying of a horse. In some cases there had been a non-suit, when the question should have been left to the jury as a-question of prudence under the circumstances. The most that can be claimed in favor of the plaintiff from any of the cases is that it is not, as a matter of law, negligence per se for one to walk over a sidewalk, knowing its defective condition. But there is no case which holds that the bald fact of walking into a known danger in broad daylight, without-necessity and without precaution, is not negligence per se. We do not question the correctness of the decisions cited. Substantially similar decisions may be found in our own reports, e. g.: Rathbone v. Union Railroad Co., 13 R. I. 709 ; Hampson v. Taylor, 15 R. I. 83 ; Clarke v. Electric Co., supra; Darling v. N. Y., P. & B. R. R. Co., 17 R. I. 708 ; Elliot v. Newport Railway, 18 R. I. 707. In the present case we decided that there was no evidence to warrant the jury in finding that the plaintiff was in the exercise of due care. It is now claimed that there was, 'because she testified that she was “trying to keep clear of the stones ;” and “to avoid them.” If she tried to avoid the stones, why did she not ? There was nothing to hinder. She could have kept clear of them easily enough by a few steps to the middle or outer part of the walk. They were in plain sight, there was no exigency, no complication. By her own statement the only way in which she tried to avoid them was by walking over them. Under such circumstances testimony is not evidence. When a jury finds that one exercises due car.e when the plain facts show that it is not so, this court must *407 say that the verdict is against the evidence. It may be said that the jury is to draw the inference. That is true when there are facts from which different inferences may properly be drawn. But when the plaintiffs statement shows, that there is nothing on which to base an inference df due care, it is the clear duty of the court to say so. We think that the verdict on this point was clearly against the evidence. All the suggestions presented by the plaintiff were carefully considered in the decision, and in the light of the present review we see nothing to lead us to a different conclusion. The petition for re-argument is therefore denied.