Herring v. City of St. Joseph

Carpenter, J. On the 11th of May, 1903, plaintiff was injured by stepping into a gutter on one of the streets of .the city of St. Joseph. She brought this suit for compensation, and recovered a small verdict and judgment. No question is raised in this court, respecting defendant’s negligence, and therefore we do not consider that question. We are asked to reverse the judgment solely upon the ground that the plaintiff’s own testimony shows that she was guilty of contributory negligence. It appears from that testimony that the existence of the gutter was well known to plaintiff; that it was broad daylight when she stepped into it; that she was carrying packages of merchandise in her arms; that “They got disarranged, and I * * * was arranging them. I hadn’t got to the gutter yet, but just about the time I got finished, I was nearer the gutter than I thought I was, and the consequence was that I got into the gutter.” That her “attention had been diverted to the packages,” and. she “ did not know she was so close to this place.” We think that under this testimony the question of plaintiff’s contributory negligence was properly submitted to the jury. See Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Graves v. City of Battle Creek, 95 Mich., at page 271 (54 N. W. 759, 19 L. R. A. 641, 35 Am. St. Rep. 561); Belyea v. City of Port Huron, 136 Mich. 504 (99 N. W. 740). See, also, Cumisky v. City of Kenosha, 87 Wis. 286 (58 N. W. 395), and Crites v. City of New Richmond, 98 Wis. 55 (73 N. W. 322). As no other complaint is made by appellant, the judgment is affirmed. The other Justices concurred.