Oesterreich v. City of Detroit

Montgomery, J.

This action is brought to recover damages sustained by the plaintiff while walking over a defective sidewalk in Biddle street, in the city of Detroit. The circuit judge directed a verdict for the defendant on the ground that the plaintiff was shown by her own testimony to be guilty of contributory negligence.

The first question for consideration is, therefore, whether the plaintiff’s own testimony conclusively shows that she took a risk which no ordinarily prudent person would have taken under the circumstances, or neglected that care for her own safety which the law requires. Her testimony shows that the walk in question was in bad condition, in that there were numerous holes in it, and was known to be in this condition by the plaintiff; that on the evening in question, about 8:30, she returned from shopping in the city, alighted from a car, and started to travel over the walk in question, having her child, 1% years old, in her arms, and carrying a half dozen eggs. The plaintiff might have avoided the sidewalk where the injury occurred by going across lots through a path, but she testified that she did not consider it safe to do so at that time in the evening. Surely she cannot be charged with negligence for acting upon such motives as would without doubt influence most women similarly situated. It is not negligence per se for one knowing of defects in a sidewalk to attempt to pass over it. Vergin v. City of Saginaw, 125 Mich. 499 ( 84 N. W. 1075 ), and cases cited. Was the plaintiff’s injury due to inattention to known dangers ? She testified as follows:

“ I kept an eye on the sidewalk as carefully as I could with the child in front of me. I couldn’t see just where I was stepping. I could have seen a hole if I had been looking at it. It was big enough to see.

“ Examination by the Court: Q. Was it light enough that night, so that, if you had been looking along the footpath pretty closely, you could have seen the holes, or was it dark enough to obscure the holes ?

“A. Well, it wasn’t so pitch dark, but not so dreadfully light along there.

*418 “ Q. What would be your judgment about that, so that, after you had cast your eye down on the plank right along where you were walking, whether you could have seen the hole; was it sufficiently light ?

“A. Well, I kind of think I could if I had not been carrying anything.

“ Q. You paid very considerable attention to distinguish holes at night ?

“ A. Yes.

“ Q. Considerable attention ?

“A. Yes.

“ Q. Was there anything to attract your attention— like the blowing of a train whistle, or anything of that kind — was there any crossing there that called your attention ?

“A. No, sir.”

And on being recalled testified as follows:

“I knew that the sidewalk was defective between Twenty-Seventh street and our house, but I never examined the particular boards. I fell at the board which you have letter ‘A’ on Exhibit B. I did not step into a hole. I was walking along, and the board tipped down, and then I fell into the hole. I did not know that the board would tip down. I never examined it for special defects. I knew that the hole in the sidewalk was bad. I knew that there were holes all through there. I do not think that I said this morning that I stepped into the hole. I did not step into the hole. I fell into it. If I said otherwise this morning, I was mistaken.”

We do not think it can be said that this testimony shows want of due care as matter of law. If it he said that she might have seen the holes and avoided them, it does not follow that she was in fault in failing to discover that the plank upon which she stepped would tip up and cause her injury. The city attorney contends that the judgment should be sustained in any event, for the reason that the notice served on the corporation counsel was not sufficient in form. The claim is that it failed to state with sufficient certainty the cause of the injury. The charter provision relied upon was considered in Tattan v. City of Detroit, 128 Mich. 650 ( 87 N. W. 894 ), where a notice very *419 similar to the one given in this case was held to have sufficiently described the time, place, and cause of the injury. It was there said that the statute, being in derogation of common right, should receive a reasonably strict construction. We hold the notice in the present case adequate.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.