Jackson ex rel. Moore v. City of Jamestown

Bruce, J. This is an appeal from a judgment against the city of Jamestown for damages for injuries sustained by the plaintiff in falling into an open trench or ditch, some T|- feet deep and 1 foot 4 inches wide, which was constructed by the direction of the defendant and permitted by it to remain practically unprotected and immediately outside of the sidewalk, with possibly a space of a foot intervening, and just inside the curb line at the corner of Fourth and Front streets, and on the north side of said Front street in the city of Jamestown, North Dakota, the sidewalk at the place in question being some 12-|- feet wide, and the space between it and the curbing being about 3-J feet. There can be no question of the negligence of the city. There can, however, to our mind, be also no question as to the contributory negligence of the plaintiff, and therefore as to the fact that the trial court erred in not directing a verdict for the defendant. Numerous other erorrs are assigned by the appellant. The one mentioned, however, is conclusive of the case, and is the only one which is necessary to ,be considered. According to the plaintiff’s own testimony he was twenty years of age. He had come to Jamestown for the purpose of getting work, and had worked for about five days prior to the accident in a livery stable. During these five days he had boarded at the Shain Hotel, which was situated on the same side of the street, on the same sidewalk, and about 30 feet east of the Stockholm Hotel, in front of which the accident occurred. During these five days the plaintiff passed along the sidewalk and within a few feet of the ditch while going to and from his work. The accident occurred at about 9:30 o’clock in the evening on the 14th day of August, 1914. Not only can the court take judicial notice that at that time of the year it is com — 605 — paratively light in North Dakota at the hour mentioned, but the evidence shows that at the time of the accident the city lights were burning and that there was a light post about 30 feet from the place of the accident, and that the light was shining on to the sidewalk from 'the windows of the Stockholm Hotel, in front of which the accident occurred. The plaintiff, according to his testimony, had been visiting a friend during the early part of the evening, and returned to his hotel at about 9 :30 .o’clock in company with a companion named Fred Wertz. He testified that while on the way they were talking and joking about their visit. He crossed the street which runs north and south, and •stopped upon the comer of the sidewalk with his companion. His testimony as to what happened there is as follows: Q. You mean you stmck this building across the street west of the Stockholm ? A. Came across from the depot and followed right on down. Fred Wertz was with me. Q. Fred was joshing you a little about the girl that night some. You were having quite a conversation standing on the comer? A. Standing on the corner, yes, sir, he was joshing me about it. We were joshing one another all the time on the way down. We stopped to talk at the corner, — talking between ourselves. I was joshing with Fred Wertz. Mr. Wertz was standing with his back to the door (of the Stockholm Hotel) I was facing him. He was standing towards the door, and I was standing this way, and I was facing him with my back this way. Q. You were near the ditch? A. Yes, sir. Q. Were you walking around there? A. Not really walking, — stepping around. Q. How did you happen to be stepping around ? A. Naturally do- — you never stand still, do you? Q. What were you stepping around about ? . A. Do you suppose you would want to stand still talking. Q. What were you stepping around about? A. Was joshing, looking around. Joshing about the, — passing the time. — 606 — Q. Joshing about the-girl and things like young fellows do ? A. Suppose that. Q. That is right, laughing? A. Some. Did not move around a great deal — just moving around. I was there I should judge about five minutes before I went into the hole, or before I fell into the ditch. Q. Well, now what did you do ? Were you looking at Fred all of this time? A. Part of the time, never kept my eyes on the same place. Q. Where were you looking ? A. Down and around. Q. Down and around whei'e? A. At the building and sidewalk. Did not look behind. Q. How were you looking around ? A. At Fred in front, the building there. Q. What were you looking at ? A. A fellow was standing at the east side of the corner. Q. Did you look around this way at all (indicating) ? A. No sir. Q. The fact of the matter is, Charley, you did not look around this way? A. No sir, not after I stopped. Q. Do you know whether you did look this way or not ? A. Might have, would not swear to it. I was looking straight ahead when I was looking at the sidewalk there nearly all the time. When I fell into the ditch we were talking — standing there talking to each other. When we started this conversation I should judge I was about a foot or a foot and a half from the comer. Q. In moving around doing your joshing, you got over towards the ditch ? A. Must have. Q. While you were moving around on the sidewalk talking, you remember you never looked back of you any other way, do you ? A. No. Never once thought of the ditch being open that way. In fact I did not know the ditch was there. Q. Did you observe the boards there before ? A. The boards ? — 607 — Q. You saw these boards there before this night, did you not? You saw those boards along that sidewalk when you went down for a week before that night ? A. No sir, never noticed them. They might have been there. Q. You saw those? A. No, sir. Q. How do you explain to the jury you never saw those things when you walked up and down there for a week ? A. The fact is I guess I never looked around in that direction. I went to the hotel when I went to get dinner and started back when I went to go to work. Q. At the time the joshing was going on when you fell down there, was it not? A. That is the time I fell into the hole — the first thing I noticed about to feel or anything was when I got into the hole. Again, he says — A. Yes, sir, backed into it and fell on my right side. “The law will not excuse a traveler in failing to make such use of his faculties as will enable him to discover plain and obvious dangers in the highway or sidewalk in front of him, but if he heedlessly casts himself upon a plain and obvious obstruction or into a plain and obvious excavation, he, and not the city, must suffer the consequences of his negligence and folly.” 5 Thomp. Neg. § 6242. “There is no rule or law that goes so far as to excuse the traveler from making such a use of his faculties to discover dangers and protect himself from them as prudent and careful travelers should make. He cannot rely so far on the presumption that the municipal authorities have done their duty and have kept the highway in repair, as to go blindly forward without looking ahead and taking the chances of getting along safely. His failure to notice large holes in the highway ahead of him will be imputed to him as contributory negligence, unless his attention has been distracted in some other direction, not idly, but by some sufficient cause.” 5 Thomp. Neg. § 6244; 28 Cyc. 1426; Moeller v. Rugby, 30 N. D. 438, 153 N. W. 290; Lerner v. Philadelphia, 221 Pa. 294, 70 Atl. 755, 21 L.R.A.(N.S.) 614, and note; McLaury v. McGregor, 54 Iowa, 717, 7 N. W. 91. — 608 — The authoi-ities indeed are practically unanimous that a person must use his senses, and must not blindly walk into a pitfall. If it is negligence to shut one’s eyes and to walk into such a defect, it is doubly so to back into it. Casey v. Malden, 163 Mass. 507, 47 Am. St. Rep. 473, 40 N. E. 849. If we apply these rules to the case at bar there can be no question of the contributory negligence of the plaintiff. The sidewalk was only 12J feet broad. It is inconceivable that, in walking to and from his work, the plaintiff could not and did not see the ditch. When he stepped upon the sidewalk at the corner and on his way home, if he had used his eyes at all, he must have seen it. “What is the difference in result or in principle,” says the supreme court of Michigan in the case of King v. Colon Twp. 125 Mich. 511, 84 N. W. 1077, 9 Am. Neg. Rep. 311, “between walking backward into a known and apparent danger and walking forward into the same danger without a thought or a look? What is the difference in result or in principle between walking forward into the same danger with one’s eyes shut or open without looking.” See also Tuffree v. State Center, 57 Iowa, 538, 11 N. W. 1; Wheat v. St. Louis, 179 Mo. 572, 64 L.R.A. 292, 78 S. W. 790; Barnes v. Sowden, 119 Pa. 53, 12 Atl. 804. The plaintiff must or should have seen the ditch. The fact that he forgot about it while talking to his friend does not make him any the less negligent. Nor can the plaintiff take advantage of the rule of momentary diversion of attention. That rule only applies where one’s attention has been diverted by an exterior and independent cause. The rule does not apply where the diversion is self-induced; and in the case at bar the diversion, if any, was induced not by exterior cause, but by the fact that plaintiff was, as he himself admits, “joshing” with his companion. Bender v. Minden, 124 Iowa, 685, 100 N. W. 352; Tuffree v. State Center, 57 Iowa, 538, 11 N. W. 1. The judgment of the District Court is reversed and the cause is remanded, with directions to enter judgment for the defendant and to dismiss the complaint.