District of Columbia v. Brewer

7 App. D.C. 113, 1895 U.S. App. LEXIS 3621

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 4, 1895
• Docket: No. 477
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

Some interesting propositions of law have been discussed in this case concerning the duties of municipalities with regard to the maintainance and repair of streets and sidewalks, and upon the effect of permitting snow to lie thereon, to the increase of existing dangers. In the view we have-taken of the case, however, it turns not upon these, but upon the question of plaintiff’s contributory negligence.

Grant that it was the duty of the defendant to keep the sidewalk in safe condition and free from snow; that the cut for the roadway rendered the walk dangerous, especially when covered by snow; that defendant had express notice of the danger in ample time to have remedied it, and with ample means for the purpose, before the accident to plaintiff ; and that the failure to take action constituted culpable negligence; still it does not follow that plaintiff is entitled to recover regardless of other facts and circumstances in the case. His own testimony shows that he knew of the dangerous place in the sidewalk, and that it had not been repaired. He knew that, covered as it was with snow, it had been rendered more dangerous. The night was clear, the street lighted, and he preferred taking the risk of the sidewalk to walking through the deep snow on another street. He mounted the two steps at the beginning of the sidewalk with safety, and realized fully when he had reached the dangerous place where there was a cut of about ten inches in the walk. He stopped, he said, and “ stepped back so as to get an idea where he was, thinking there would be a little dirt there; that he stepped back a little and went to walk across, and he then slipped, and turning round, trying to catch himself, fell across the corner of the board.” He did not step off at the roadway suddenly or unexpectedly and thus receive the fall. His foot slipped upon the board, and he fell across the corner. A similar accident might have befallen him had he slipped at some other point and fallen from the raised board walk. But, be that as it may, he deliberately took the risk of walking along this dangerous sidewalk and received his injury in so doing. As this plainly appeared from the testimony of the plaintiff himself, who seems to have testified with perfect fairness, and there was no other evidence, the court should have instructed the jury to return a verdict for the defendant. For the error in refusing the prayer to that effect, the judgment must be reversed, with costs to the appellant, and the cause remanded. It is so ordered.