Maloy v. City of St. Paul

Collins, J. Plaintiff brought this action to recover for personal injuries caused by a defective sidewalk, and obtained a verdict, which was set aside, and a new trial ordered, on motion [402] of defendant city. The facts were not in' dispute. The defect was in the walk in front of the lot om which plaintiff resided with her husband, and close by their dwelling. The planks in the walk at this particular point had been laid lengthwise, and one had been broken down, so that there was a hole about eighteen inches long and about six inches in width, at the widest place. The walk had been laid six inches above the surface of the ground. It had been in this defective condition for more than three months, and plaintiff had known of this all of the time. She had passed by this break or hole daily for more than two months prior to the evening of this accident, carefully avoiding the dangerous place. When the accident occurred, there was a light snow upon the walk, partly filling the hole, and the snow was still falling. About dark, plaintiff, who was fifty years of age, having occasion to go to a neighbor’s, went out on the walk, and, stepping-into the hole, was thrown down, thus receiving the injuries complained of. She testifies that the falling snow was blown into her eyes so that her vision was obstructed, and also that she did not think of the defect as she walked along. It did not appear from the testimony that there was anything to distract her attention, and, because there was nothing justifying or excusing inattention to the well-known condition of the walk, the court below ordered a new trial. In accordance with the prevailing rule everywhere, it has again and again been held by this court that previous knowledge of the condition of a street or sidewalk is not conclusive evidence of contributory negligence, so as to bar a recovery by a person injured in consequence of its being out of repair; and the cases were collated very recently in Wright v. City of St. Cloud, ante, p. 94, (55 N. W. Rep. 820,) in which a recovery was denied because it was apparent from plaintiff’s own testimony that she had full and present knowledge of the exact condition of the walk, and the risk incident to traveling upon it, could easily have avoided it, and simply overestimated her own ability to go across, in broad daylight, without falling. On the facts the case at bar is not analogous. The defect here was not such as would or should have turned the prudent traveler off from the walk to seek a better route. The accident happened in the evening, when the snow was falling, blowing, and to some extent obscuring the vision of the plaintiff, [403] and filling tbe bole in the walk. Although advised of the defect, she did not have it presently in mind. Nor is it necessary that the thoughts of a traveler should be at all times fixed upon defects in the street or sidewalk, of which he may have notice. George v. Haverkill, 110 Mass. 506; Barton v. City of Springfield, Id. 131. It is certain that previous knowledge of the existence of a defect has an important, and oftentimes a decisive, bearing upon the question of contributory negligence; but mere inattention to a known danger, on the part of this plaintiff, cannot be held to conclude her. Of the Minnesota cases before referred to, that of Estelle v. Village of Lake Crystal, 27 Minn. 243, (6 N. W. Rep. 775,) is, on the facts, as they appeared in the record,—although not very fully stated in the opinion,—more in point than any other. (Opinion published 56 N. W. Rep. 94.) Order reversed.