MOSHEUVEL v. DISTRICT OF COLUMBIA

MOSHEUVEL v. DISTRICT OF COLUMBIA. Streets and Sidewalks ; Contributory Negligence. A woman, who, knowing of the existence of a hole in the sidewalk at the > entrance of her dwelling, undertakes in leaving the house to step over the hole, which requires an unusually long step, instead of to one side of it or the other, which she could have safely done, is guilty of contributory negligence^?' se,, and can not recover damages from the municipality for an injury so received; following Brewer v. Dist. of Col., 7 App. D. C. 113. No. 1004. Submitted December 13, 1900. Decided January 9, 1901. Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia entered upon the verdict of the jury directed by the court in an action against the District of Columbia to recover damages for injuries to the female plaintiff. Affirmed. The facts are sufficiently stated in the opinion. Mr. Henry E. Davis and Mr. Ghas. Gowles Tucker for the appellant: 1. When the negligence of the defendant is conceded, the trial court is not justified in directing a verdict for the defendant because the acts of the plaintiff show that, in some degree, he may not have been as careful as the most cautious and prudent man would have been. Jones v. Railroad Co., 128 U. S. 443. 2. Every occupant of a dwelling house has a right to use the sidewalk, but if he has knowledge of a defect therein he is chargeable with a greater degree of care than if he did not have such knowledge. Whether, having such knowledge, he is in a given case guilty of contributory negligence depends, first, upon the character of the defect, and, secondly, upon the care he used in attempting to avoid injury. If the defect be a deep and dangerous trench, his duty to exercise care would be greater than if the hole were a small one and one he has repeatedly passed and repassed without injury. Williamsport v. Lisle, 21 Ind. App. 414. The following are authorities upon the question under consideration : One injured upon a street he knew to be dangerous need not show that he exercised extraordinary care while upon such street. Hanlon v. Keokuk, 7 Iowa, 488. A fortiori he is not obliged to keep off from such a street altogether. Rice v. Des Moines, 40 Iowa, 638; Reed v. Northfield, 13 Pick. 94. One may proceed, if it is consistent with reasonable care' to do so; and his negligence is generally a question for the jury, depending upon the nature of the obstruction, or insufficiency of the highway, and all the surrounding circumstances. Kelly v. Fon du Lac, 31 Wis. 179. Mere miscalculation as to one’s proximity to the known dangerous part of a highway will not have the effect of establishing conclusively a want of ordinary care. Bloodv. Tyngsborough, 103 Mass. 509. Mere error of judgment does not necessarily amount to contributory negligence. McClain v. Railroad, 116 N. Y. 459. The rule is that a person having knowledge of a defect or obstruction is bound to use care according to the circumstances to avoid injury. Smith v. Smith, 2 Pick. 621; Thompson v. Bridgewater, 7 Pick. 188; Rindge v. Coleraine, 11 Gray, 157; Crumpton v. Solon, 11 Me. 335 ; Jacobs v. Bangor, 16 Me. 187; Garmon v. Bangor, 38 Me. 443; Noyes v. Morristown, 1 Vt. 353; Folsom v. Underhill, 36 Vt. 580; Kock v. Edgewater, 14 Hun, 544; Nicks v. Marshall, 24 Wis. 139; Earleville v. Carter, 2 Bradw. 34; Craig v. Sedalia, 63 Mo. 417; Moore v. Shreveport, 3 La. Ann. 645. Accordingly, if the obstruction or defect in the highway is of such a nature that it will be consistent with reasonable care to attempt to pass by it, one using the highway is entitled to make the attempt. Thomas v. Telegraph Co., 100 Mass. 156; Fox v. Glastenbury, 29 Conn. 204. See, also, Clayards v. Dethick, 12 Ad. & E. 437; Baltimore v. Holmes, 39 Md. 243; Kane v. Railroad Co., 128 U. S. 94; Commrs. v. Burgess, 61 Md. 31; Commrs. v. Broadwaters, 69 Md. 533; Nichols v. Laurens, 96 Iowa, 388; Fitzgerald v. Paper Co., 155 Mass. 155; East Saint Louis v. Donahue, 77 Ill. App. 574; Beach on Con. Neg. (2d Ed.), Sec. 247 ; Shertn. & Red. on Neg., Sec. 376 ; Graham v. Oxford, 105 Iowa, 709 ; Barnes v. Marcus, 96 Iowa, 675; Crites v. New Richmond, 98 Wis 55, and cases cited; Graney v. St. Louis, 141 Mo. 185; Seybold v. Railroad Co., 18 Ind. App. 390; Railroad Co. v. Crist, 116 Ind. 446; Kavanaugh v. Janesville, 24 A Vis. 619; Reed v. Northfield, 13 Pick. 94; Smith v. Lowell, 6 Allen, 39; Snow v. Railroad, 8 Id. 441, 450; Frost v. Waltham, 12 Id. 85; Fox v. Sackett, 10 Id. 535; Mahoney v. Railroad, 104 Mass. 73; Lyman v. Amherst, 107 Mass. 339; Whitaker v. Boylston, 97 Id. 273; Humphreys v. Armstrong Co., 36 Pa. St. 204; Smith v. St. Joseph, 55 Mo. 449; Rice v. Des Moines, 40 Iowa, 638 ; Griffin v. Auburn, 58 N. H. 121; Erd v. St. Paul, 22 Minn. 443; Aurora v. Dale, 90 Ill. 46; Dooley v. Meriden, 44 Conn. 118; Turnpike Co. v. Jackson, 86 Ind. 111; Coates v. Canaan, 51 Vt. 131; Montgomery v. Night, 72 Ala. 411; Bullock v. New York, 99 N. Y. 654 ; Pomfrey v. Saratoga, 104 N. Y. 459 ; Noble v. Richmond, 31 Graft. 271; Corts v. Dist. of Col., 18 D. C. 288; Muller v. Dist. of Col., 5 Mackey, 286. Mere knowledge of a defect in a street will not preclude recovery from injury received. Whitford v. Southbridge, 119 Mass. 564; Stevens v. Walpole, 76 Mo.App. 226; Griffin v. Lewiston, 55 Pac. R. 545; Schwingschlegl v. Monroe, 113 Mich. 683; Frankfort v. Coleman, 19 Ind. App. 373; Boulton v. Columbia, 71 Mo. App. 523; Waltemeyer v. Kansas City, 71 Mo. App. 358, citing Gerdis v. Iron & Foundry Co., 124 Mo. 347; Taylor v. Springfield, 6 Mo. App. 263; Bonga, v. Weare, 109 Mich. 520; Nichols v. Laurens, 96 Iowa, 388; Albion v. Hetrick, 90 Ind. 545; Sandwich v. Dolan, 141 Ill. 430, citing 136 Id. 45, 138 Id. 465; Gosport v. Evans, 112 Ind. 133; Columbus v. Strassner, 124 Ind. 482. Whether the plaintiff who was injured by falling into an open grating or hole in a sidewalk, was guilty of negligence in walking upon one part of the sidewalk rather than upon another was “certainly not a question of law, and was properly left to the jury.” Lincoln v. Power, 151 U. S. 441. 3. It is urged by the appellee that the case at bar is controlled by the opinion of this court in Brewer v. Dist. of Col., 7 App. D. C. 113. We do not understand that it was the intention of this court in the Brewer Case to hold that mere knowledge of a dangerous defect in the sidewalk would preclude recovery by a person who was injured; but that, in view of the particular circumstances of that case, the fact that the plaintiff had knowledge of a dangerous defect in a sidewalk, and yet chose to make use of the sidewalk at night and at a time when he knew that the danger was increased by the presence of snow thereon, instead of using another route which was perfectly safe, precluded him from recovering. Mr. Andrew B. Duvall, Attorney for the District of Columbia, and Mr. Clarence A. Brandenburg, Assistant Attorney, for the appellee. [MAJORITY — Mr. Justice Morris] Mr. Justice Morris delivered the opinion of the Court: This is an action at law instituted by the appellants as husband and wife against the appellee, the District of Columbia, to recover damages for personal injuries, sustained by the female plaintiff on August 7, 1899, by being violently thrown to the ground in consequence of slipping over or into a water-box in the sidewalk in front of her place of residence, which water-box had been permitted by the negligence of the proper officers of the District to remain uncovered and unguarded for a period of upwards of a year before the time of the accident. The circumstances would seem to have been these : The water-box was in the sidewalk at the bottom of three steps which led from a brick-paved landing at the front of the plaintiff’s house; and there was no place of egress from the house to the street other than by these steps. The box was so situated about midway of the steps that, in order to go from the lowest step to the sidewalk, it was necessary to go either to the right or to the left, which it would have been safe to do, or to take an unusually long step, at all events, unusually long for the female plaintiff, in order to step over the box and clear it. It was about four inches square, projected irregularly above the level of the street, and was without covering of any kind; and its condition was known to the District authorities, for the inspector of plumbing, who had come to the house at the plaintiff’s request to inspect the plumbing, had made some remark to her about it. It was in the same dangerous condition at the time of the commencement of the plaintiff’s occupancy of the house about nine months before the accident, and so remained without change." And it may be added that it was visible from the door of the plaintiff’s house. It appeared in evidence that a lady had stumbled over the obstruction in the early summer of 1899, and that the plaintiff herself had stumbled over it once before, although, as she testified, she always tried to be careful, and usually went to one side or the other, and not over the box, for which, as she knew, an unusually long stride was necessary. On the day of the accident mentioned in the declaration the plaintiff was going to visit a neighbor in an adjacent house. She testifies that from the time she left her door, she had the box in view a part of the time, and had it in mind all the time and remembered its dangerous character; but that .on this occasion she attempted to step over it, instead of going to one side, did not take a sufficiently long step, and put her foot into the hole and was thrown, with the result that she suffered serious injury. This is the substance of her testimony in the case, which is set out more in detail in the bill of exceptions. But into that detail it is unnecessary for us here to enter. Upon that testimony the court below, regarding the case as governed by the decision of this court in the case of Brewer v. District of Columbia, 7 App. D. C. 113, upon the motion of the defendant, instructed the jury to render a verdict for the District of Columbia on the ground of contributory negligence on the part of the plaintiff; and such verdict was rendered. From the judgment entered thereon the plaintiffs have appealed. The case is in some respects a very meritorious case. The injured plaintiff has stated the circumstances most fairly and honestly, and her testimony is worthy of all commendation. She was almost lured to her injury by the continued neglect of the District to remove the dangerous obstruction, which was only one specimen of many such obstructions occurring to the common knowledge of all citizens in the streets and highways of this city, and which could be removed by reasonably careful inspection and at a greatly less cost than the amount of any one verdict against the District that has been recovered in any such case. Nevertheless, despite the fact that the negligence of the District has been great and is almost confessed on the record, we can find no difference in principle between this case and that of Brewer v. District of Columbia, upon the authority of which the court below proceeded. See, also, the case of Kelly v. Doody, 116 N. Y. 575. Iñ' pursuance of the decision in the Brewer Case, and leaving the parties to their ultimate appeal to the Supreme Court of the United States, we must affirm with costs, the judgment of the Supreme Court of the District of Columbia in the premises. And it is so ordered. A writ of error from the Supreme Court of the United States was prayed and allowed.