Cole v. Kloepfer

WADE, Justice. Appeal from a judgment dismissing with prejudice at the end of plaintiff’s case her action for personal injuries caused by defects in a sidewalk, on the grounds of contributory negligence. The evidence disclosed that in May, 1947, respondents dug a trench for water and sewer pipes in front of a home at about 263 East Third South Street, in Logan, Utah. In digging this trench, respondents tore up about a 10 by 5 foot strip of sidewalk lying to the south of the house. When the trench was backfilled with a bulldozer a depression was left from the center of which some large blocks of cement protruded about three inches above their surroundings, which consisted of an uneven surface of dirt and gravel. Appellant lived within a block of 263 East Third South Street and was well aware of the defects left in the sidewalk there, having had occasion to pass over it about twice a week for about a year and a half before the accident occurred. She had frequently remarked that it was hazardous. The accident occurred in broad daylight, about 5 o’clock in the afternoon of October 8, 1948. Nothing was obstructing her view of the defects in the sidewalk and she was aware of them when she started to cross this spot. Appellant was in the process of crossing when some children who were playing about a half a block away, screamed just as a speeding car drove by in the direction in which she was walking. Upon hearing the screams she stopped and looked up, and upon again starting to walk, she stubbed her toe on the abutting pavement as she went to step on the sidewalk an fell, seriously injuring her leg. In Eisner v. Salt Lake City, Utah, 238 P.2d 416, this court held that a pedestrian who had knowledge of and had an unobstructed daylight view of a defect in a sidewalk was contributorily negligent as a matter of law when because of diversion by a group of children rushing toward her she momentarily forgot about the defect and stepped into [454] it, thereby causing her injury. We there recognized that temporary forgetfulness of a known danger may be excuse where some outside cause distracts the attention if such distraction is unexpected and substantial. Although the writer of this opinion dissented in the Eisner case, being of the opinion that it was a question of fact for the jury to determine whether a large group of children rushing towards a person was a sudden and substantial diversion or distraction, nevertheless that case is now the law in Utah. The distraction in the instant case is no more sudden and unexpected than in the Eisner case and all the other elements were similar to those in that case. The court, therefore, did not err in finding that appellant was guilty of contributory negligence as a matter of law and dismissing the case with prejudice. In view of this it is unnecessary to determine whether the court erred in holding that appellant had failed to prove a duty on the part of respondents to maintain the sidewalk in a safe condition. Affirmed. Costs to respondents. WOLFE, C.J., and McDONOUGH and HENRIOD, J.J., concur.