Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
The controversy in the case in judgment is not one of law, but of fact.
The law applicable to cases of this character is well settled.
There are two issues involved, (1) whether the municipality was primarily liable, and,if so, (2) whether there was contributory negligence on the part of the plaintiff which barred her right of recovery.
[1] The primary liability of the municipality, if it existed, must have arisen from its breach of duty in its failure to exercise reasonable or ordinary care under the circumstances to keep its sidewalk in a reasonably safe condition for travel in the ordinary modes by persons exercising reasonable or ordinary care on their part .under the circumstances to avoid accident.
[780]*780The duty of the municipality in the premises was not that of an insurer against accident upon the sidewalk. Not every defect, though it may cause the injury sued for, is actionable. The municipality will not be liable for every mere inequality or irregularity in the surface of the way not likely to cause injury. It is only against danger which it can or ought to anticipate, in the exercise of reasonable forethought, in view of the actual condition of the way (if it has actual or constructive notice thereof), that the municipality is bound to guard.
[2-4] In the latter particular, however, the duty of the municipality is different from that of the person using the way. With respect to such person the condition will be held to be only what it appears or would appear to be to him in, the exercise of ordinary care on his part to avoid accident. If he has no previous knowledge of a defect'in the way, he owes no duty of inspection to discover it, and he is not required to be on the lookout for defects of obstructions. In the absence of knowledge to the contrary, he may, if the exercise of reasonable or ordinary care under the circumstances would not give him that knowledge, act on the assumption that the way is in a reasonably or ordinarily safe condition. But he may not negligently disregard dangers which are so open and obvious that they would be apparent to an ordinarily prudent person in a like situation. Whereas with respect to the municipality, it is charged with the duty of reasonable inspection, and the condition will be held to be what it in truth is, if such inspection would disclose it.
That the above is the substantive law on the subjects mentioned all the authorities agree. Among them are the following, which are cited in argument before us. 4 Dillon on Mun. Corp. (5th ed.), sections 1697, 1711; 28 Cyc. 1358-1361, 1366-7, 1396; Bedford City v. Sitwell, 110 Va. 296, 65 S. E. 471; Osborne v. Pulaski, etc., Co., 95 Va. 17, 27 S. E. [781]*781812; Moore v. Richmond, 85 Va. 545, 8 S. E. 387; Portsmouth v. Lee, 112 Va. 430, 71 S. E. 630; Cook’s Adm’r v. Danville, 116 Va. 385, 82 S. E. 90, L. R. A. 1915A, 1199; Newport News, etc., R. Co. v. Clark’s Adm’r, 105 Va. 205, 52 S. E. 1010, 6 L. R. A. (N. S.) 905, 115 Am. St. Rep. 868; Richmond v. Schonberger, 111 Va. 168, 68 S. E. 284; Richmond v. Courtney, 32 Gratt. (73 Va.) 792.
It is a concessum in the case in judgment that the defective condition of the sidewalk had existed' for an amply sufficient time before the accident to have given the city actual or constructive notice of such condition, and it took no steps to remedy that condition. And the city took the position on the trial, as one of its defenses, that the actual condition of the sidewalk did not present a case of an actionable defect.
1. The first question for our decision, therefore, is whether, but for the demurrer to evidence, there was sufficient evidence before the jury to have warranted them in finding that the unevenness in the sidewalk, which is described in the statement preceding this opinion, was an actionable defect, in that it was a condition which the city, in the exercise of reasonable forethought, ought to have anticipated would render the sidewalk unreasonably unsafe for travel in the ordinary modes by persons exercising reasonable or oridnary care on their part under the circumstances to avoid accident?
[5, 6] In the very nature of the case the problem involved in this question is ordinarily essentially a jury question. It is a complicated question Of fact. It is not simply a matter of the height of the obstruction, but also of how unexpected its existence was to a person, such as the plaintiff, who had encountered no.such obstructions elsewhere in that locality, and who did not previously know of its existence; of what its appearance would reasonably be expected to be to one approaching it under the circum[782]*782stances which attended the plaintiff—some of which circumstances are mentioned in the statement preceding this opinion, none of which were extraordinary, and hence all of which might have reasonably been anticipated by the city by the exercise of reasonable forethought; and whether such person in the exercise of ordinary care would be expected to detect the true condition of the defect if approaching it under the circumstances which attended the plaintiff. These are all matters in their nature unsuited for decision other than by a jury, being in the case before us of such character that they admit of different conclusions by reasonable men. And we think, as did the learned trial Judge, that on the demurrer to evidence by the city such question of fact is concluded against the city.
[7] Decided cases are of but little assistance to the court in the consideration of such a question as that here before us. The authorities emphasize the truth that in this character of cases, especially—“In each case the way is to be pronounced sufficient or insufficient as it is or 'is not reasonably safe for ordinary purposes of travel under the particular circumstances which exist in connection with that particular case * 28 Cyc. 1366-7. (Italics supplied.)
[8] It is of course true that where the obstruction in the way is so slight that the minds of reasonable men would not differ in the conclusion that it would not be likely to endanger travel in the ordinary modes by persons exercising reasonable or ordinary care, the court would not sustain a verdict undertaking to establish the primary liability of the municipality aforesaid; but such is not the character of case before us.
[9] As above noted, the city, on this question, is charged with the duty of exercising reasonable forethought on the subject of what is likely to be the result from- the actual condition of the sidewalk upon the safety with which a pedestrian, such as was the plaintiff, would traverse it, [783]*783walking slowly, who before near approach to it might well look upon it as but one of the grooves across the walk to be seen at the regular intervals of about five feet, because of possibly having looked only at the inner edge of the walkway, where the unevenness was scarcely perceptible even upon close inspection, or because of the condition of light or shade at the time, and whose attention might then be attracted elsewhere by some ordinary cause until immediately upon the defect, when the person might be likely to look over and beyond it and not observe its true character, induced, it might be, so to do, by a previous subconscious observation and appraisal of it as but a normal groove across the walk.
[10] It should be borne in mind that, as travel was not attempted to be stopped, but was permitted on the walkway in question, the defense of the city, that the defect was not actionable, must rest on the position that the defect was too slight to be actionable. The municipality will not be allowed, in such a case, to urge in justification of its leaving it there, that a defect in its streets is so large that it is obviously an obstruction and a menace to pedestrians— as, for example, where the defect consists in an obstruction seven and two-tenths inches high, as in Richmond v. Gentry, 111 Va. 160, 68 S. E. 274. That would be to allow the municipality to defend by setting up its own wrong, consisting of its own gross neglect of duty in the premises. Hence the court will not.hold as a matter of law that such a defect is so large—i. e., that the municipality’s negligence has been so gross—that the defect is not actionable. If it were otherwise municipalities would need only to be grossly negligent in the premises in order to be relieved of the duty of keeping their streets in proper condition for public travel. The defense of the municipality in such case, if defense it has, must rest upon the position- that the plaintiff has been guilty of contributory negligence, which will bar recovery notwithstanding that the defect is actionable.
[784]*784In the case last cited (Richmond v. Gentry, 111 Va. 160, 68 S. E. 274), the uncontroverted facts were that the defect consisted of a stone, in size three feet six inches long, by one foot in width and six-tenths of a foot in thickness at the end against which the plaintiff stumbled, resting on the surface of the sidewalk, ten inches from the front of a building for an entrance step to which the stone was used, and there, too, the uncontroverted fact was also that the plaintiff “had often passed the point and knew of the stone on the sidewalk.” But this court in the opinion delivered by Judge Keith, approved the action of the trial court in refusing to give an instruction to the effect that as a matter of law such an obstruction did not constitute an actionable defect.
And, indeed, in the last named decision the court did not consider that it was even a case in which it could say, as a matter of law, that the plaintiff had been guilty of such contributory negligence as barred recovery.
[11] There is no case in Virginia, which ha,s been cited in argument, in which this court has held that the obstruction was so slight that it will be held, as a matter of law, not to constitute an actionable defect, where the obstruction was as great as in the case in judgment. The nearest Virginia case to the one before us on this point is that of Richmond v. Courtney, supra, 73 Va, (32 Gratt.) 792. There the obstruction, if there was any difference in its essential character, was less likely to cause the fall of a person walking slowly over it under ordinary circumstances than the obstruction in the case in judgment. As said in the opinion of Judge Christian in that case of the obstruction there involved : “The plaintiff herself described it as a broken place in the sidewalk and says that she struck her foot against a loose brick in the sidewalk and fell. She says further that the pavement wa,s broken up, and that she fell in among the loose bricks. Another witness * * describes the [785]*785defects as follows: ‘It consisted of a place in the pavement 8x5 feet or thereabouts, from which brides had been removed, and a few bricks were lying about loose in the opening; * * there was no excavation, and that he had never heard of any one else stumbling there; that he himself had walked over the place many a time and never thought it dangerous.’ ”
Judge Christian in his opinion does take the position that, as a matter of law, the city was not guilty of negligence with respect to the defect in the pavement—i. e., that the defect was not actionable—and in that connection says: “Slight obstructions, produced by loose bricks in the pavement, or by the roots of trees which may displace the pavement, from the nature of things, cannot be prevented.” But that was not the majority holding. Only one other judge (Judge Moncure), concurred in Judge Christian’s opinion. Judge Staples said “he was not prepared to concur in so much of the opinion of Judge Christian as declares that the city of Richmond is not guilty of negligence with respect to the defect in the pavement.” Judge E. C. Burks concurred in the view of Judge Staples. The case was decided in favor of the city, however, on the ground of the contributory negligence of the plaintiff, of which we shall have more to say below; and Judge Anderson concurred in the judgment to that effect.
Similarly in Redford v. City of Woburn, 176 Mass. 520, 57 N. E. 1008, it is held, as stated in the opinion, that, “* we do not think it could be ruled a,s a matter of law that the jury were not warranted in finding that a shut-off box in the middle of a sidewalk much used for foot travel, projecting on one side an inch and a quarter above the surrounding gravel, did not constitute a defect. Whether suelf an object was liable to cause travelers, while in the exercise of due care, to stumble and fall, or to turn or sprain the ankle, as we infer the plaintiff did, and whether the de[786]*786fendant exercised reasonable care in suffering the box and sidewalk to remain in the condition in which they were, it seems to us, questions for the jury.” Citing a number of Massachusetts cases.
And in Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416, it is held, as stated in the opinion of the court, that—
“While it is true, as stated, that a municipal corporation is not an insurer against accidents on its streets and highways, yet it is charged with the exercise of due and reasonable care in keeping and maintaining its streets so as to prevent injury to persons traveling over them. In this case two water plugs, one projecting 2% inches, and the other 1% inches, above the sidewalk, and near the center thereof, seem to be a very dangerous contrivance to be permitted to exist at a point where persons have the lawful right to go, and where pedestrians are daily traveling. In using the sidewalks of a city, a pedestrian has the right to presume that they are kept in a reasonably safe condition for travel.
“In this case, suppose such a person as could be charged with contributory negligence should be passing over the sidewalk of the defendant a.t the point where the accident occurred, and not knowing of the existing defect, and should stumble over it and be injured by reason thereof, the city would be liable, unless contributory negligence could be charged against him * * *. ”
Among the cases cited for the city, in which the defect in the way was held as a matter of law not to be actionable, are the following, which approach nearest in their facts to the case in judgment: Weisse v. Detroit, 105 Mich. 482, 63 N. W. 423; Hamilton v. Buffalo, 173 N. Y. 72; 65 N. E. 944; Beltz v. Yonkers, 148 N. Y. 67, 42 N. E. 401.
[12] In Weisse v. Detroit, the alleged defect whs one of original construction of a, cross walk in that it was about [787]*7871% inches above the sidewalk where the two joined. But, as said in Richmond v. Schonberger, 111 Va. 168, at p. 171, 68 S. E. 284, at p. 285: “* it is only reasonable to say that one passing over a street crossing may more reasonably expect obstructions and should therefore exercise a greater degree- of care than upon the sidewalk strictly so-called,” hence the Weisse v. Detroit Case is distinguishable from the case in judgment.
In Hamilton v. Buffalo, the defect was different from that in thé case in judgment, being a depression. Moreover, the plaintiff walked over it four or five times a, day, was familiar . with it, had often noticed it before the accident, and the plaintiff himself testified that he had not considered it at all dangerous. And the court said in its opinion—“evidently it did not occur to him that it was dangerous or that accidents were reasonably to be anticipated by its existence.” Hence it was held that no such duty of anticipation rested upon the city.
In Boltz. v. Yonkers, also, the defect was a depression, 2^2 inches deep, and 7% x 26 inches in surface area, caused by the removal of broken parts of the flag-stone paving of a sidewalk from about the center of the way. - The sidewalk was eight feet wide, leaving ample space on each side of the depression for passage free' of any defect. And as affirmatively appeared in evidence, the walkway had been, used by the public in that condition- “for years,” and that “no accident had resulted from such use before,”
On principle, therefore, and. upon authority we are of opinion that there was sufficient evidence in the case in judgment to have supported a verdict of the jury, had not the demurrer been interposed, holding, -in effect, in accord with the opinions of Judges Staples and E. C. Burks, in Richmond v. Courtney, that the defect in the sidewalk in the case in judgment was actionable.
We come now to the only question remaining for our decision in this case, and that is this:
[788]*7882. Was the evidence before the jury such that, but for the demurrer to evidence, they would have been warranted in finding that the plaintiff was not guilty of contributory negligence which proximately contributed to her injury?
[13] The conclusion we have reached above, that the jury might have found, and hence, there having been the demurrer to the evidence by the city we must find, that the defect in the case in judgment was actionable, demonstrates that the plaintiff was entitled to recover if she was exercising due care a,t the time she fell, since her fall was unquestionably occasioned by the defect. Therefore the court cannot say, as a matter of law, from the mere size of the obstruction caused by this particular defect that the plaintiff was guilty of contributory negligence. The latter question necessarily involves not alone the size of the obstruction, but also all the circumstances which surrounded the plaintiff at the time, and her conduct in the light of these circumstances. This is a complicated question of fact, and much more so than that of whether the defect aforesaid was actionable. • ' ,
[14] As set forth in the statement preceding this opinion the plaintiff had no knowledge of the defective condition of the sidewalk previously to the accident. Other material facts and circumstances surrounding the plaintiff at the time are also set forth in such statement.- Among them is the character of the walk itself. Concrete sidewalks are intended and are reasonably presumed to be of a smooth and uniform' surface. Further, the plaintiff was in a locality at the time shortly preceding the accident in which the whole of her acquaintance with it, previously, and on that occasion acquired, as the jury were warranted in inferring, also reasonably led to the impression upon her that there were no inequalities in the level of the sidewalk on which she was proceeding at the time of the accident. It was not like the situation where a person is walking [789]*789on a brick pavement, which is obviously uneven and broken up here and there at divers places by the upheaval of it by the roots of trees, where such very conditions admonish the passér-by to be unusually watchful in his lookout and careful in his step. And there was the situation mentioned in the statement preceding this opinion of the absence of testimony showing how the photographs introduced in evidence by the city were taken; in which case only a view of 'the locality under similar conditions as existed at the time of the accident could determine the value of such photographs as evidence. The jury could best pass upon that matter after their view. Then too there were the other circumstances mentioned in the statement preceding .this opinion which bear upon the question of fact as to whether the plaintiff was exercising ordinary care immediately preceding and at the time of the accident—as to whether her failure to detect the real condition of the obstruction in the sidewalk evidenced lack of exercise by her of ordinary care. These are all subjects about which it is apparent in this case that the minds of reasonable men might differ. The very fact that the obstruction was not great and the other circumstances aforesaid; i. e., of the defect only showing an unevenness of a half-inch if the -glance of the eye fell upon the inner edge of the walkway with its gradual increase to two inches so that it might have been mistaken for an ordinary groove in the walk, as aforesaid, until plaintiff was immediately upon it; the sunlight in the face of the plaintiff; her attention being attracted elsewhere until so near the defect that when, from facing sunlight, she glanced back ahead of her on the walkway, more or' less in shadow she may have naturally failed to detect, or have naturally looked over and beyond the defect, being unsuspicious of its character. All these, and the other circumstances in the case are peculiarly matters for the consideration of a jury and about which the minds of reasonable men may differ [790]*790in conclusions a,s to whether the plaintiff exercised ordinary-care.
[15] As said in 28 Cyc. 1420-1: “Whether or not the person injured by reason of a defect or obstruction exercised ordinary care and diligence at the time of the accident, depends upon the surrounding circumstances existing at that time and place, and upon the danghr reasonably to be apprehended, and is ordinarily a question of fact for a jury.”
As said in 4 Dillon on Mun. Corp., sec. 1719, on the subject of contributory negligence in cases such as that we have under consideration: “* * Although the facts are not controverted, yet, if different minds may reasonably draw therefrom different conclusions, the question is for the jury as one of fact, and not for the court as one of law. This statement of the law is substantially taken from the judgment of the Supreme Court of the United States, and in the author’s opinion it gives the true rule on the subject.” Citing Sioux, etc., R. Co. v. Stout, 17 Wall. (U. S.) 657, 21 L. Ed. 745.
As said in Bashford v. Rosenbaum, 120 Va. 1, at p. 8, 90 S. E. 625, at p. 628: “The jury’s verdict was for the plaintiff, under instructions * * which submitted both the questions of the defendant’s negligence and that of the plaintiff’s contributory negligence to them, and after a view o by the jury of the premises, allowed by the court; therefore to disturb this finding it was necessary for the trial court to have taken the view that there could be ho difference of opinion amongst reasonable men as to the plaintiff’s contributory negligence.”
On the subject of contributory negligence the following of the cases cited for the city approach nearest in their facts to the case in judgment, namely: Richmond v. Schonberger, supra, 111 Va, 168, 68 S. E. 284; Gosport v. Evans, 112 Ind. 133, 13 N. E. 256, 2 Am. St. Rep. 164; Lerner v. [791]*791Philadelphia, 221 Pa. 294, 70 Atl. 755, 21 L. R. A. (N. S.) 614; and Richmond v. Courtney, supra, 78 Va. (32 Gratt.) 792.
The Schonberger Case involves a street crossing and is distinguishable for that reason, as above noted.
The other cases just cited all involve similar defects in the sidewalk, consisting of displacement of bricks. In the Evans and Courtney Cases the plaintiff’s fall was caused by striking a foot against a brick projecting above the level of the surface on which the plaintiff was walking; but in both of those cases the plaintiff was well acquainted with the existence of the defect prior to the time of the accident, and both decisions turn on that fact; which differentiates those cases from that in judgment. While in the Lerner Case, the plaintiff’s fall was occasioned by losing her balance and falling on stepping into a depression in the sidewalk. There the “defect in the pavement was the displacement of some bricks,” as stated in the opinion. Over how large an area does not appear from the report of the case. The opinion states that “Into the depression caused by the displacement plaintiff stepped, with the result that she fell and injured herself.” The opinion then proceeds: “In bringing her action she assumed the burden of exhibiting a case clear of contributory negligence. Having testified that she stepped into the depression without having observed it, and having shown conditions which should have been sufficient, nothing intervening, to secure one exercising ordinary care from such accidents, she would be entitled to recover only as she explained in a way consistent with ordinary care on her part, how and why she failed to see what was directly before her. Failing in this, it could not be said that her injury resulted exclusively from the defendant’s negligence. It is insisted upon by counsel Representing her that she was prevented from seeing the depression into which she stepped by the crowded condition of the pavement at the time. No [792]*792other explanation is attempted. Unfortunately for the plaintiff this explanation advanced by counsel is without support in the evidence.”
The court entered a compulsory non-suit.
[16] From what is above quoted from the opinion of the court in the Lerner Case we see that the holding is partly placed upon the ground that the burden of proof is upon the plaintiff to show affirmatively that he is not guilty of contributory negligence. This is not the rule in Virginia. Here, the burden of proof of showing contributory negligence on the part of the plaintiff is upon the defendant, unless it appears affirmatively from the evidence for the plaintiff. And further: There were no circumstances whatever shown in evidence in the Lerner Case on which the plaintiff could rely as explaining the accident in accord with her exercise of reasonable or ordinary care for her own safety, other than that she was prevented from seeing the defect in the way by the crowded condition of it at the time; which proof, as the court held, failed. The case in judgment is a very different one in this regard, as appears from the statement preceding this opinion.
On the whole, therefore, while the case is a close one on the question of contributory negligence, we are of opinion that upon the evidence in this particular case, this question Was for the jury, and that there was sufficient evidence to support the verdict of the jury, had the demurrer to evidence not. been interposed, in finding, in effect, that the plaintiff was not guilty of such negligence as barred her right of recovery. Hence we must think upon this point also, as did the learned judge of the trial court, that, on the demurrer to evidence aforesaid, the question of contributory negligence aforesaid must be considered as concluded against the city.
The judgment under review will therefore be affirmed.
Affirmed.