District of Columbia v. Aukward

Mr. Justice Robb delivered the opinion of the Court: The learned trial justice in his charge to the jury, to which there was no exception, said: “It -is true that one walking where he has a right to walk, in the public street or on the sidewalk, has a right to assume, unless there is something to indicate to the contrary, that the District has performed its duty in providing a safe place, considering the purpose for which the street or sidewalk was made, — in the case of the sidewalk, if it is safe for people to walk over, and in the case [160] of the highway, if it is safe for vehicles to pass over. But when a person unnecessarily goes off of the sidewalk at a point not prepared for pedestrians, and undertakes to cross there, then of course the additional duty rests upon him to remember that it is a place prepared for vehicles, and not primarily intended for pedestrians, and the presumption of safety would not extend any further than the use for which the place was built and is supposed to be kept in repair.” Had the driver of an automobile or other vehicle met with an accident because of this defect in the street, clearly it would have been a question for the jury whether he should have seen and avoided it. Burke v. District of Columbia, 42 App. D. C. 438. We there said that one driving along the city street may assume, when he has no knowledge to the contrary, that the street is in a reasonably safe condition. It necessarily follows that he may act upon this assumption, and give only such heed to the surface of the street as would a reasonably prudent man in the circumstances. The presence of many other vehicles upon the street, especially those motor-driven, the frequency of crossings, and the stopping of street cars to discharge and take on passengers, demand constant watchfulness on the part of the driver of any vehicle. While he may not shut his eyes to obstructions or defects in the street surface, it is apparent that he must rely, to some extent, upon the presumption that the city has performed its duty. Streets of a city are not exclusively for vehicular traffic, but may be used by pedestrians if due care is exercised. Moebus v. Hermann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415, Elliott, Koads & Streets, 622. And a pedestrian rightfully upon the street is entitled to as much protection as the driver of a vehicle. While he may not assume that the street between crossings is as smooth and safe for pedestrians as at crossings, he certainly has a right to assume that it is reasonably safe for the use for which it primarily was intended. District of Columbia v. Boswell, 6 App. D. C. 402; Winchester v. Carroll, 99 Va. 727, 40 S. E. 37; Kohlhof v. Chicago, [161] 192 Ill. 249, 85 Am. St. Rep. 335, 61 N. E. 446; Dill. Mun. Corp. sec. 1698. Indeed, in getting on and off street cars passengers must walk in the street at points other than crossings, for it is conceded that such cars are required to stop before a crossing is reached. In the present case, the car was approximately 40 feet in length, and was to stop several feet south of the 0 street crossing. Therefore, had plaintiff approached the car from the east side of First street instead of from the west, she would have been considerably farther south than the point where she was injured. Certainly it cannot be said that she was guilty of contributory negligence merely because she attempted to cross where she did. Denver v. Sherrel, 31 C. C. A. 499, 60 U. S. App. 104, 88 Fed. 226, 5 Am. Neg. Rep. 520; Woodman v. Metropolitan R. Co. 149 Mass. 335, 4 L.R.A. 213, 14 Am. St. Rep. 427, 21 N. E. 482, 12 Am. Neg. Cas. 80; Miller v. Lewiston Electric Light, Heat & P. Co. 212 Pa. 593, 62 Atl. 32; Bell v. Clarion, 113 Iowa, 126, 84 N. W. 962. In the Woodman Case, Justice Holmes, now of the Supreme Court of the United States, said: “It is suggested that (plaintiff) was not crossing at a regular crossing. But his rights were not changed by a slight change in the pavement. He had a right to cross where he chose, if the jury thought he used due care.” We therefore are back to the question whether, considering that appellee had a right to assume that this street was in a reasonably safe condition for vehicular traffic to which it was open, her failure to observe the depression into which she stepped constituted contributory negligence, as matter of law. As above suggested, it clearly would not in the case of the driver of a vehicle. It must be noted that this was a depression, and not an obstruction. The settling of two or three of these blocks to the extent of 3 inches would make comparatively little difference in the surface appearance of the street. The upper surface of the depressed blocks would blend with the surface of those not depressed, so that one having no knowledge of the situation would not be likely to notice them unless gazing directly at them. There is evidence for the appellant to the effect that [162] several people bad repeatedly passed tbis point without observing tbe depression, and it was developed during tbe cross-examination of tbe friend of appellee, wbo was witb ber at tbe time of tbe accident, that although she (tbe friend) bad crossed tbe street at practically tbe same place every morning, she bad not noticed it. Appellee’s admission, on cross-examination, that she was not looking down when she stepped into tbe depression, while tending to show lack of care on ber part, was not necessarily conclusive of tbe question. She was not required, nor is any pedestrian required, constantly to look down and thereby assume tbe danger of being run over. In view, therefore, of tbe uncontested fact that tbis depression was of such a character as to render tbe street unsafe for vehicular traffic, and that it was not readily observable by one having no knowledge of its existence, we agree witb tbe trial court that it was for tbe jury to say whether appellee exercised that degree of care required of ber in tbe circumstances. Tbe judgment is affirmed. Affirmed.