Bohn v. City of Racine

Maeshall, J. To the trial court there was presented for determination a question as to whether there was evidence susceptible of a reasonable inference that appellant, on the occasion of his injury, was guilty of contributory negligence. That question was deliberately decided in the affirmative. The effect of this appeal is to challenge that decision as one not only wrong, but clearly so. Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; Nicoud v. Wagner, 106 Wis. [344] 67, 72, 81 N. W. 999. As has often been said, in effect, if there is room for conflicting reasonable inferences on the record as it comes to ns, as to whether there was or was not evidence tending to establish contributory negligence, a proper regard for the deliberate judgment of the circuit court should incline us to the view that it is right. A study of the evidence in the light of the legal principle applicable thereto does not leave the mind free from reasonable doubts but that it is susceptible of conflicting reasonable inferences as to appellant’s contributory fault. True, he had a light to assume, in the absence of knowledge to the contrary or any circumstance reasonably sufficient to put him on his guard, that the walk was. reasonably safe; but, just as true, it was his duty to exercise ordinary care with his eyes as well as his feet, as he proceeded, and to observe those things affecting his personal safety which were open and obvious to ordinary attention to his surroundings. In many sidewalk cases that might be cited the plaintiff was held guilty of contributory negligence because when he was injured the defect could easily have been seen by him had he observed, as persons ordinarily do, his pathway as he proceeded, and there was no evidence that his attention was for the moment diverted. Robb v. Connellsville, 137 Pa. St. 42, 20 Atl. 564; Shallcross v. Philadelphia, 187 Pa. St. 143, 40 Atl. 818. In a late work treating on this subject the law is stated thus: “A'traveler is not bound to-give his whole attention to the highway over which he is passing, nor to keep his eyes constantly fixed upon the pavement or roadbed, watching for defects; nor need he look far ahead for defects or obstructions. Hence if, while his attention is momentarily diverted, he falls into an excavation or runs against an obstruction, the presence of which was not known to him, he is not necessarily, as a matter of law, guilty of contributory negligence, and that, too, even though such accident happens in broad daylight.” Williams, Municipal Liability for Tort, § 128. [345] That is well supported by the authorities cited. It suggests, as will be seen, that in the circumstances stated the fact that the defect is easily observable by the ordinary use of the traveler’s eyes as he proceeds is sufficient to carry the case to the jury on the issue of contributory negligence. That 'is because of the opportunity for reasonable controversy as to whether there was reasonable diversion of attention. When a defect in a walk 'is in plain sight of the traveler, and yet he is injured by it, that is sufficient to rebut the legal presumption in his favor of due care, and call upon him to show some reasonable excuse for not seeing the danger, substantially the same as if he knew of the defect. Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322; Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087. Of course, he is not absolutely bound to see defects that are observable by looking, any more than he is bound to remember a defect of which he has knowledge. But he is called upon in both cases to show •some reasonable diversion of attention at the instant of the injury, and that is rarely accomplished with such clearness •as to take the issue in regard to the matter from the jury. Applying the foregoing to the record before us, a decision is not difficult to reach. By the aid of the photographs it seems that the jury might reasonably have come to the con-■elusion that the defect in question was so prominent that appellant could readily have seen it had he been looking at or ■paying any attention to the walk in front of him. Bespond-•ent’s attorney seems rather to concede that, in the absence of -evidence showing that it was dark and that by reason of dense foliage on the shade trees at the sides, of the walk, rays of light from the electric lamps at the crossings did not reach the place of the accident, the obstruction could easily have been seen by appellant. But the evidence is by no means either conclusive that it was so dark that without artificial light the obstruction was not observable by ordinary atten [346] tion, or that there was no artificial light effectual to dispel the darkness if that condition existed. The jury may well have come to the conclusion from the evidence that the accident happened soon after 8 o’clock. Appellant started out on his pleasure walk at 7 p. m. Traveling’ continuously except for a momentary stop at a saloon, he proceeded about two miles before the accident occurred. A person would go that dis-tence at a very slow walk in an hour. On July 27, 1902, the sun did not set till about half past seven. So it will be seen that there is ground for believing that there was a sufficient degree of twilight when the accident occurred to enable appellant to easily see the end of the walk as he approached it, if he had been paying any attention to his pathway. But, assume that such was not the case, — there is considerable evidence that the street lights at the crossings made the end of the walk a conspicuous object, either by the rays of light reaching the point directly or being reflected thereto from surrounding objects. The pathway upon which appellant approached the cement walk was black. The surface of the cement walk was white. The contrast between the two surfaces was so great that the jury might very reasonably have come to the conclusion that there was sufficient light to render the end of the cement walk plainly visible. In addition to-all this there is an entire absence of evidence that appellant’s-attention was diverted in any way, while there is much evidence that he knew quite well the fact that the work of putting down new cement walks on the street had been in progress for a long time, that a new walk had been partly laid between Fourteenth, and, Fifteenth streets commencing at Fifteenth street, upon which he was traveling, and that he must necessarily reach it before arriving at Fifteenth street. He had passed in plain view of the whole situation many times prior to the accident, the last time being on the day of the occurrence. In view of all we have detailed, it would seem that the trial court had good ground for holding that [347] there was evidence in the case tending to prove that appellant heedlessly walked into the danger, and that his fault in so doing contributed proximately to the result for which compensation was sought. It must be remembered that the issue of contributory negligence is peculiarly one for the jury; that is, that the cases are exceptional where it can be said as a matter of law either that the plaintiff was or was not guilty of contributory fault. There are a few exceptions where rules of law supply a certain test; but, generally speaking, the test is' the judgment of the jury, from their conception of what ordinary care would require under the same or similar circumstances. So, it is generally difficult to determine whether, from any given state of facts, reasonable conflicting inferences of fact can or cannot be drawn. We are not prepared to say that the effect of the trial judge’s decision in this case need be taken account of in coming to a conclusion that the judgment should be affirmed ; but if we were to arrive at that point, certainly there is sufficient doubt as to the right of the matter that such decision should be deemed controlling. By the Court. — The judgment is affirmed.