Cartano v. City of Athena

176 P. 789, 90 Or. 586, 1918 Ore. LEXIS 227

• Court: Oregon Supreme Court
• Decided: December 24, 1918
• Status: Published

Opinion

BENSON, J.

The assignments of error challenge the correctness of the ruling of the trial court in denying defendant’s motion for a judgment of nonsuit. This motion, and the arguments of defendant’s counsel contend that there is a total failure of proof that the defendant had notice of the defect in the sidewalk, and also that the court should have held, as a matter of law, that the plaintiff was guilty of contributory negligence.

1, 2. It is contended that the walk in question was located upon the principal throughfare of the city and within a block of the business center. Several witnesses testified to having observed the hole for periods varying from two to six weeks. W. P. Littlejohn testified that he was then a member of the municipal council and had been for about six years; that he walked along that street probably once a day; that he knew that “the walks were bad all along there.”

The general rule in regard to constructive notice of defects of this sort is well expressed in 28 Cyc. 1390, as follows:

“Notice to a city of an unsafe and dangerous condition of its streets or sidewalks may be implied if the defect has existed for such a length of time that the municipal authorities, by the exercise of reasonable care and diligence, could have known of its existence and remedied it. There is no fixed or definite rule as to what length of time would be required in order to justify such inference of notice on the part of the municipality, but each case must depend upon the facts and peculiar circumstances attending it.”

We think that under the evidence in the case at bar it was a question for the jury, and not one for the determination of the court.

3. Considering next the question of contributory negligence, it may be observed, that particular cases are of slight assistance to a court in determining whether or not a given state of facts constitutes negligence per se. The peculiar facts and circumstances of the individual case must supply the decisive factors. There was evidence to the effect that it was a very dark night. The witness Kidder says that hearing a groan, he went to where the plaintiff lay upon the ground, with his foot caught in the hole, and that he was unable, on account of the darkness to identify him until he heard his voice. Mr. Shick and his wife walking past them, stopped and were unable to identify either Cartano or Kidder, until they used a flash-light which Mrs. Shick was carrying. There had been a light fall of snow that day. The plaintiff says that it was so dark that he could not see the hole; that he knew that there was a hole in that vicinity, but that he also knew of two others, one of which was about six feet distant from the one causing the accident; that the latter extended from near the middle of the walk to the outer curb, while the former extended toward the inner side of the walk; that in his effort to avoid the first, he stepped into the second. That under evidence of this sort, the question of contributory negligence is properly submitted to the jury, seems to us to be beyond the pale of argument or the demand for authority, but it may be said that this view is emphasized in the following cases: Russell v. Monroe, 116 N. C. 720 (21 S. E. 550, 47 Am. St. Rep. 823); Shook v. Cohoes, 108 N. Y. 648 (15 N. E. 531); Knoxville v. Cox, 103 Tenn. 368 (53 S. W. 734); Parcells v. Auburn, 77 Hun, 137 (28 N. Y. Supp. 471); Barton v. Springfield, 110 Mass. 131.

We conclude that the motion for a judgment of non-suit, was properly denied, and the judgment is therefore affirmed. Apeirmed. Behearing Denied.

Burnett and Harris, JJ., not sitting.