Summary
In Sorna, the plaintiff attempted to cross a street that had been excavated and the dirt bank gave out and she was injured.
Summary of this case from Gordon v. Dollar Gen. Corp.Opinion
No. 21883
Decided April 16, 1930.
Negligence — Municipal corporations — Pedestrian assumes risk of injury from open and apparent street and sidewalk defects — Pedestrian, injured by latent defects, not guilty of contributory negligence, when — Contributory negligence in not taking alternative way over improvement excavation — Question for jury.
1. One using a sidewalk, crosswalk, street or highway, which ordinary and reasonable care would inform him was dangerous, takes the risk of such injuries as may result to him by open and apparent defects, such as his observation ought to have detected and avoided. ( Schaefier v. City of Sandusky, 33 Ohio St. 246, 31 Am.Rep., 533; The Village of Conneaut v. Naef, 54 Ohio St. 529, 44 N.E. 236, and City of Norwalk v. Tuttle, 73 Ohio St. 242, 76 N.E. 617, approved and followed.)
2. A pedestrian, proceeding with due care as to known defects, who sustains an injury while using a street crossing under course of improvement, the injury being caused not by the known, open and apparent defects, but by a latent, hidden defect in such street crossing, of which he had no knowledge and which could not be detected by him by ordinary and reasonable care, is not guilty of contributory negligence as a matter of law.
3. In an action for damages by a pedestrian for injuries sustained at a street crossing where an excavation exists, evidence showing that plaintiff attempted to cross over the excavation instead of taking an alternative route which would have necessitated going through mud and using a paved portion of a road which was much traveled and involved danger, such facts make a jury question, whether plaintiff's failure to use the alternative way constituted contributory negligence upon her part.
ERROR to the Court of Appeals of Cuyahoga county.
This is a proceeding in error to reverse the Court of Appeals of Cuyahoga county, the judges of the Second District sitting by designation. For convenience, the parties will be referred to as they stood in the court of common pleas, Anna Sorna being plaintiff and the Highway Construction Company being defendant. The village of Maple Heights was also an original defendant, but during the progress of the present case the case as to said village was dismissed by the plaintiff without prejudice.
The record discloses that the Highway Construction Company had entered into a contract with the village of Maple Heights for the improvement of Anthony street in said village, from a point where the said Anthony street runs into Libby road, and thence in a northerly direction. Work had already begun on said improvement, and the construction company had made a cut in Anthony street, and enough dirt had been excavated so that a dirt bank or shoulder was left at the edge of the cut, a distance of eighteen inches or two feet, so that a person desiring to cross Anthony street where the same intersects Libby road was required to step down from the old level of the crosswalk to the new level, walk across Anthony street on the new level, then step up a similar distance on the other side. No boards or other means of retaining the dirt on such step-off were provided, nor were any steps made for the accommodation of those desiring to cross Anthony street at the point in question.
On Sunday, October 19, 1924, the plaintiff, Anna Sorna, a married woman twenty-eight years of age, in a stage of seven months of pregnancy, was returning from church, and walked westerly on the sidewalk on the north side of Libby road, which is claimed to be one of the main thoroughfares in the village of Maple Heights, a suburb of Cleveland. When she came to the intersection of Libby road and Anthony street, she went into a grocery store to purchase supplies for her home use. Coming out of the store, she started to cross Anthony street on the northerly crosswalk of the intersection in order to go on along Libby road beyond Anthony street to her home. The plaintiff had upon other occasions crossed Anthony street in its then condition, and on the street, where the same had been excavated, the owner of the grocery store had placed boards for the accommodation of his customers desiring to cross Anthony street at that point.
As above stated, plaintiff was required to step down from the old level of Anthony street to the new level, walk across Anthony street, and then step up a like distance and continue her journey. At the point where she had theretofore stepped down on previous occasions she stepped upon the edge of the dirt bank where the same was practically perpendicular, and where, as the plaintiff claims, no attempt had been made to protect it from crumbling or caving by putting boards on the edge, or by sloping the bank, or providing steps for it. Her foot projected about two inches over the edge of the bank, the bank crumbled, or caved and gave way, so that she was precipitated onto the level of Anthony street where the same had been excavated, sustaining injuries, chiefly to her wrist and arm.
The plaintiff claims there was no other means of crossing Anthony street provided by the defendant, and that the only possible alternative path was to cross a strip of sixteen feet of mud and water to the paved portion of Libby road, then across Libby road to the pavement, said to have heavy traffic by reason of a detour on other streets of the village, said traffic rendering the crossing difficult and dangerous, then across a like strip of dirt on the southerly side of the pavement, which it is claimed was likewise muddy, to the sidewalk on the south side of Libby road, then west on said sidewalk to the other side of Anthony street, then go back to the north side of Libby road through the same two strips of dirt and muddy road and cross the pavement with the traffic, as above indicated, or to proceed on the paved portion of Libby road where the traffic along the width of Anthony street existed, and then cross the muddy strip back to the sidewalk on Anthony street.
The negligence averred against the construction company was, first, that it recklessly and negligently carried on the work of excavation so as to create a deep and dangerous step in the crosswalk over Anthony street; second, that it recklessly and negligently failed to place a board or other device on the top of the bank to prevent the bank from crumbling; third, that it recklessly and negligently failed to cut steps in the bank so as to permit pedestrians to walk up and down in safety; fourth, that it recklessly and negligently failed to warn pedestrians of the danger incident to walking on said sidewalk by reason of the crumbling character of the bank; fifth, recklessly and negligently failed seasonably to inspect and repair the dangerous, defective, and unsafe places; sixth, recklessly and negligently maintained a nuisance in a public sidewalk, by reason of the condition there allowed to exist; and seventh, recklessly and negligently failed seasonably to protect the sidewalk by suitable devices after it knew, or in the exercise of ordinary care should have known, the dangerous, defective, and unsafe condition thereof.
The construction company, after making certain admissions as to its corporate character and the nature of its business, denied each and every allegation contained in the petition, which it did not admit to be true, and further answering said that any injuries the plaintiff received were caused by her own negligence and carelessness.
The plaintiff claims that the record tends to show the following facts:
1. The Anthony street crosswalk was not closed to travel.
2. It was used by all persons traveling along Libby road.
3. No bypath or alternative way was provided.
4. A step-down was created in this crosswalk, which was dangerous in the following respects:
(a) It was perpendicular, and therefore likely to crumble and cave.
(b) It was unguarded at the edge where travelers had to step.
(c) It was left without steps provided, or cut into it.
(d) No warning was given of the danger of caving in.
5. Because of the dangerous condition of the bank, it caved in and threw the plaintiff down.
When the matter came on for trial the first time, a verdict was returned generally for the defendant. Error was prosecuted to the Court of Appeals because of error in the charge of the court in an answer to a written communication from the jury. The Court of Appeals reversed the judgment and remanded the case for a new trial. Motion to certify was filed in this court, which was overruled, whereupon the case came on for trial a second time.
At the close of plaintiff's evidence, the defendant made a motion for a directed verdict, which was overruled. No evidence was introduced by the construction company, and the matter was submitted to the jury. A verdict was returned in favor of the plaintiff in the sum of $6,750, and at the same time the jury returned an answer to a special interrogatory, as follows: "Did the plaintiff see and know the nature and character of the excavation on Anthony street before and at the time of passing over it? A. Yes."
Motion was made for judgment upon the special findings, which was denied. Motion for new trial was overruled, and judgment entered on the verdict. Error was then prosecuted to the Court of Appeals, wherein the judgment was affirmed, and the cause is now in this court for review.
Messrs. Howell, Roberts Duncan, for plaintiff in error. Mr. J. DeKaiser and Mr. M.C. Harrison, for defendant in error.
This record presents a single question: Was the plaintiff, Anna Sorna, guilty of contributory negligence as a matter of law, which should prevent her from recovery in this case?
The claims of the respective parties may be thus stated: The construction company contends that a pedestrian may not attempt to pass over a defective condition in a city street in broad daylight when the condition is plainly visible, and of which condition the pedestrian has previously had full knowledge, and then, if injured while attempting to pass over such defective condition, recover damages, when there is another convenient and accessible way for the pedestrian to use to avoid the defective condition in the street. The plaintiff, Anna Sorna, denies there was another convenient and accessible way for her to use, but claims that the same required her to pass over two sixteen-foot strips of muddy dirt road and cross a pavement filled with traffic, or to proceed along such pavement, with its traffic, to her point across the intersection of Anthony street; that while she knew of the condition of the street at the crosswalk, as to its being excavated, she did not know the hidden or latent defect, to wit, the dangerous condition of the bank and its liability to crumble and precipitate her to the street below. Her testimony tends to support her contention.
From an examination of the record, it is apparent that it was not the excavation in the street which caused Mrs. Sorna's injury, but the crumbling of the bank, which she claims defendant had negligently failed to properly guard by boards, or by cutting steps, or by slanting back so as to protect persons desiring to use the crosswalk at that place. Whether under such circumstances the defendant construction company was negligent, and whether such negligence proximately caused the plaintiff's injury, and whether she herself contributed thereto by her own want of due care or by her failure to take an alternative way, were all questions for the jury — found adversely to the construction company.
Plaintiff in error relies upon the principle of law announced in City of Norwalk v. Tuttle, 73 Ohio St. 242, 76 N.E. 617, 618, the second paragraph of the syllabus there providing:
"One who voluntarily goes upon a sidewalk of a city, which is obviously, and by him known to be, in a dangerous condition, cannot recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown. ( Schaefler v. City of Sandusky, 33 Ohio St. 246 [31 Am.Rep., 533], and Village of Conneaut v. Naef, 54 Ohio St. 529 [44 N.E. 236], approved and followed.)"
This principle of law is well settled in Ohio, and this court so recognizes. However, we do not regard the same as applicable to this case, for the reason that Mrs. Sorna's injury was not caused by the open and apparent defects of which she had knowledge, to wit, the excavated street, but by another latent, hidden defect in such street or crossing, of which she had no knowledge, to wit, the condition of the bank and its liability to crumble, although she had passed in safety over the same route on previous occasions, using the crossing in about the same way she did at the time of the injury, which bank the defendant negligently failed to properly protect and safeguard.
This distinction is recognized in the leading case of Schaefier v. City of Sandusky, supra, where, in the opinion, it is said: "The case, as found by the special verdict, is not one where there is an obstruction not known to be perilous. In that class of cases negligence can not be imputed to one who uses such carefulness as a man of ordinary prudence would exercise. But where there is danger, and the peril is known, whoever encounters it, voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence, and therefore does so at his own risk."
The plaintiff in error contends that the expression, "where there is an obstruction not known to be perilous * * * negligence can not be imputed to one who uses such carefulness as a man of ordinary prudence would exercise," is obiter and not necessary to the decision of that case. Be that as it may, the proposition of law as stated is a sound one and is well established in the authorities. 21 L.R.A. (N.S.), 638; 13 Ruling Case Law, page 478; Moore v. Huntington, 31 W. Va. 842, 8 S.E. 512; McQuillin on Municipal Corporations (2d Ed.), Vol. 7, page 274, Section 3014; Missouri Kansas Telephone Co. v. Vandervort, 71 Kan. 101, 79 P. 1068, 6 Ann. Cas., 30; Nicholson v. City of Philadelphia, 194 Pa. 460, 45 A. 375; White's Negligence of Municipal Corporations, page 682, Section 581; page 735, Section 620; page 743, Section 628; Pecor v. City of Oconto, 125 Wis. 335, 104 N.W. 88; Mosheuvel v. District of Columbia, 191 U.S. 247, 24 S.Ct., 57, 48 L.Ed., 170.
As stated in 43 Corpus Juris, page 1092: "Nor is it negligence to use a way known to be merely defective, but believed to be safe with ordinary caution. In considering whether or not plaintiff exercised proper care in taking the route he did, the fact that such route was generally used by the public, or that the alternative route was also dangerous, or was long and difficult, should be taken into consideration." See, also, City of Toledo v. Smith, 79 Ohio St. 459, 87 N.E. 1133, affirming Smith v. City of Toledo, 11 C. C. (N.S.), 167, 20 C. D., 454.
McQuillin, in his work on Municipal Corporations (2d Ed.), Volume 7, page 283, quoting March v. Phoenixville Borough, 221 Pa. 64, 70 A. 274, says: "Where the traveler has knowledge of a defect in the highway, it does not follow, as a legal consequence, that he must, under all circumstances, avoid the use of it, and reach his destination in some other way. It is a question of the character and imminency of the danger, and the difficulty or inconvenience of avoiding it. If the danger was serious and imminent it might be the traveler's duty, as a matter of law, to avoid it at any inconvenience. If, however, the danger was trifling, and the inconvenience of taking another way was so great that an ordinarily prudent man would not subject himself to it, it would not be negligence not to do so. Between these extremes are the countless gradations of danger and ways of avoiding it, depending on the circumstances."
To summarize: The evidence tends to show the crosswalk was open for travel; that the plaintiff walked where other pedestrians, going to and from the grocery and using the crosswalk, had gone with safety. She attempted to use the crosswalk just as she had done upon previous occasions with safety. The evidence tends to show that no boards or other provisions of safety, such as steps or a slant-back, were provided by the construction company, and so, using the crosswalk with prudence at the time and place in question, as she had previously done, with no knowledge of this hidden danger or latent defect, the same crumbled under her feet and she was thrown to the street.
The defendant introducing no testimony, and the rule applying that the most favorable view must be taken of plaintiff's evidence upon the motion to direct a verdict, we think whether or not the plaintiff was thus guilty of contributory negligence in proceeding as she did, or in not taking an alternative way, presented a case for the consideration of a jury.
As to the special finding by the jury upon the question whether or not the plaintiff saw and knew the nature and character of the excavation on Anthony street before and at the time of passing over it, which the jury answered in the affirmative, we think that such is not inconsistent with the general verdict. The plaintiff was not injured because of the "nature and character of the excavation," but because of the nature and character of the dirt bank and its likelihood to crumble, of which she did not know, but which the defendant negligently failed to guard and protect; nor was there any inquiry of the jury in that regard, but simply as to the excavation, the existence of which the plaintiff knew because she had passed over the same on several previous occasions. The special findings in the Schaefler case, supra, were far more comprehensive and doubtless showed clearly the contributory negligence of Schaefler. No such conditions exist in the present record, and the answer to the interrogatory submitted by no means discloses facts inconsistent with the general verdict.
We are of opinion that the Court of Appeals was correct in affirming the judgment of the common pleas court, and in so doing its judgment is affirmed.
Judgment affirmed.
JONES, MATTHIAS and ALLEN, JJ., concur.