Grandorf v. Detroit Citizens' Street Railway Co.

Montgomery, J. This is an action for personal injuries. According to the claims of plaintiff, the defendant [497] was engaged in paving between its tracks in the fall of 1895, and for this purpose used stone from 8 to 14 inches long-, 4 inches thick, and from 7 to 7-J- inches deep. The stone for this purpose were piled along the street, and left there for some little time. Some were piled up loosely inside the curb, and projected over the sidewalk about a foot and a half. It was claimed that the sidewalk was shaky; that, when people walked along it, their weight would loosen some of the stone piled on the walk, and they would fall down on the walk; that the stone were left scattered over the walk in different places; that people along the line of the street were accustomed, notwithstanding the presence of the stone, to habitually pass along the walk; that, at the place of the accident, the sidewalk was' only a 4 or 4|- foot walk, and that a foot and a half of that was taken up by the pile of stone; that, on the day in question, plaintiff, in company with two other ladies, had occasion to pass along the north side of Gratiot avenue, between Chene street and Grandy avenue; that the plaintiff, carrying a child in arms, and one of the other ladies, were walking abreast, and, when about the middle of the block, they encountered six or seven loose stones upon the sidewalk; that these stones were lying separate from each, other, and extended across the entire walk; that the plaintiff saw these stones, and continued on her way; that she had stepped over one stone, and, when in the act of stepping over another, stubbed her toe, fell, and was severely injured. The injury occurred in the daytime, and the plaintiff saw the stone. The circuit judge charged the jury that the plaintiff was guilty of contributory negligence, and could not recover. Plaintiff brings error. We think this ruling correct. Plaintiff cites the case of Laughlin v. Railway Co., 62 Mich. 220, and other cases, in which it is held that knowledge of an obstruction or defective condition of a street does not make it negligence per se for the plaintiff to continue to attempt to pass over such defective way. But none of these cases [498] go the length required here, where the nature of the obstruction and the steps necessary to avoid it are both apparent and in the mind of the plaintiff at the very moment of the accident. If this had been a defect of which the plaintiff simply had had previous knowledge, and which knowledge was not in her mind at the time, or if her attention had been diverted from the obstruction, there would be ground for the plaintiff to stand upon. See Graves v. City of Battle Creek, 95 Mich. 266 (35 Am. St. Rep. 561). But she not only knew of the presence of this stone in the way; she knew how to avoid stubbing her toe against it. For, aside from the fact that the court might well assume that any person would know the effect of stubbing the toe against an obstruction, it appears that this plaintiff knew how to avoid it, from the fact that she had stepped over other stones in similar position, before reaching this. The condition was perfectly apparent to her. There were no latent defects. She knew precisely the risk she assumed, and assumed it. The case falls within Black v. City of Manistee, 107 Mich. 60. Judgment affirmed. Long, C. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit.