Lowell v. Township of Watertown

Champlin, J.

This action was brought to recover damages which plaintiff suffered by reason of a defect in a public highway which it was the duty of defendant to keep in repair.

It is conceded that the highway was defective, and that the defendant was negligent in not having repaired tjm same, and that plaintiff was injured by reason of such defect, *569 and the only question raised in the record is whether the testimony of plaintiff himself did not show that he was guilty of such contributory negligence as should preclude him from recovering.

This testimony showed that the accident happened on a dark and misty night, while he was walking along the highway on his return from a neighbor’s. lie was traveling north in the carriage track. On the west side of the highway was u sidewalk. lie was very familiar with the locality, and had for a long time known of the defect, which consisted of a hole about a foot square, made for the purpose of allowing water from the highway to pass into an underground cirain constructed beneath the ditch of the west side of the highway. Plaintiff testified that he was thinking of this hole from the time he crossed the bridge over Looking-Griass river until he stepped into it; that he was attempting to pass from the traveled part of the highway to the sidewalk for the purpose of looking at a cow he had in the old cooper’s shop, and the first he knew he was thrown forward and so severely in jured as to render him insensible for a time ; and on recovering he found he was unable to stand or walk. He made •outcry, and was found by one of his neighbors.

The defendant’s counsel claim that his knowledge of the ■defect, and his having it in his mind at the time, was conclusive evidence of his want of ordinai'y cai’e in stepping into the very hole he had it in mind to avoid; and that for this reason the case should have been taken from the jury.

We cannot accede to this view. A person is not necessai*ily precluded from recovering for an injury caused by a ■defect in a highway, simply for the x’easoxx that he was aware •of such defect; but this fact, with all otlxei’S, is proper to be taken into consideration by the jury in determining whether, under all of the facts and circumstances, he was guilty of such cax’elessness or negligence without which he woxxld not have been injured.

The judgment must be affirmed.

The other Justices concurred.