Merchants Ice & Cold Storage Co. Bargholt. ger existed in one of the great thoroughfares of the city, and he was not confined to the use of any particular part of the street, but that he had a right to walk upon any part of it. To the same effect is the City of Louisville v. Keher, 117 Ky. 270, 79 S. W. 270. And in the case of the Brush Electric Lighting Company v. Kelley, 126 Ind. 220, 25 N. E. 812, 10 L. R. A. 250, where a lady walking along Main street in the city of Lafayette in the daytime had fallen over a wire and sustained an injury, in passing upon the question the supreme court of Indiana said: "We do not think that it necessarily follows that the appellee was prima facie guilty of negligence in not observing the obstruction. She had the right to presume that the sidewalk was free from obstruction until her attention was in some way called thereto, and to act upon such presumption. A small wire lying along a sidewalk might very reasonably be overlooked by a passer-by who has no notice thereof, and the fact that it is overlooked does not necessarily indicate negligence We cannot hold as a question of law that a person may not pass along a sidewalk cautiously and fail to observe a small wire along across it; and then we can imagine many circumstances whereby the attention of the pedestrian might be attracked from the sidewalk which would be sufficient to divert the attention of a reasonably prudent person." In the case of City of Chicago v. McLean, 133 Ill. 148, 24 N. E. 527, 8 L. R. A. 765, in passing upon a similar question, the court said: "The plaintiff in this case was bound to make a reasonable use of her faculties when walking along the sidewalk in order to avoid danger; but what was such reasonable use was a question of fact to be determined by the jury, under all the circumstances disclosed by the evidence. * Merchants Ice & Cold Storage Co. Bargholt. What particular facts amounted to an exercise of ordinary care, or what particular facts amounted to a want of ordinary care, it was for the jury, and not for the court to determine." And in the case of Barry v. Terkildsen, 72 Cal. 254, 13 Pac. 657, 1 Am. St. Rep. 55, in passing upon a similar question, the court said: "A sidewalk of a street in a city not near a crossing may be taken by one passing over it to be safe, and not a dangerous place. In this case the respondent had the right to presume that the sidewalk was in the same condition in which she had always found it; and the fact that her attention was momentarily attracted in another direction-a thing of most common occurrence to travelers along the street-falls far short of that contributory negligence which in law defeats an action for damages." And in the case of McGuire v. Spencer, 91 N. Y. 303, 43 Am. Rep. 668, where the plaintiff was injured by falling into an uncovered hole in the sidewalk of the street in the city of Brooklyn fronting upon premises owned by the defendant, the court said: "Negligence is a relative term, and depends upon the degree of care necessary in a given case. He who approaches a railroad crossing approaches a place of danger, and he must look and listen, for he is bound to anticipate a possible harm. But one who passes along a sidewalk has a right to presume it to be safe. He is not called upon to anticipate danger, and is not negligent for not being on his guard." And, in the case of the City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271, the court said: "A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care and diligence depends upon the circumstances of each partic Merchants Ice & Cold Storage Co. Bargholt. ular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in search for possible holes or other defects would be to establish a manifestly unreasonable and wholly impracticable rule." In the case of Le Beau v. Telephone & Telegraph Construction Company, 109 Mich. 302, 67 N. W. 339, the plaintiff had fallen over a barrel placed over a hole in the middle of the sidewalk in the daytime on a May morning. As he approached the sidewalk his attention was attracted to workmen who were doing construction work on the street, and while his attention was so attracted he fell into the barrel in the hole and was injured. In passing upon his right to recover the Supreme Court said: "Whether one who, in passing along a sidewalk, and while absorbed in watching the workmen in an excavation being made from the street into an area under the sidewalk, walks into a manhole left open for the purpose of hoisting through it material excavated from the area, without seeing a barrel which had been placed beside the manhole as a means of guarding it, is guilty of contributory negligence, preventing a recovery for the resulting injuries, is a question for the jury." And in the case of West v. City of Eau Claire, 89 Wis. 36, 61 N. W. 315, the Supreme Court of Wisconsin said: "The momentary diversion of the plaintiff's attention could not be contributory negligence as a.matter of law." And in the case of Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424, 2 Am. St. Rep. 459, the plaintiff fell into an unguarded hole in the street, and in reviewing the case on appeal the court said: "She had a right Merchants Ice & Cold Storage Co. Bargholt. to assume the safety of the sidewalk, and so was not called upon to give attention to her steps until in some manner warned of danger. Undoubtedly she knew that vaults and coal chutes were common under and adjacent to sidewalks, and that they were the ordinary openings through which coal oil was deposited in the vaults. But she had a right to assume that they were securely covered, or, if left open, were guarded by some one to give warning, or by the crib or box prescribed by said ordinance. Neither protection was provided in the present case. In a crowded street it might not be observed in time to avoid a fall, but she swears no such sign of possible peril was present, and, though contradicted, we must take the verdict of the jury as settling the fact in her favor." To the same effect are the cases of McGrail v. Kalamazoo, 94 Mich, 52, 53 N. W. 955; Russell v. Monroe, 116 N. C. 720, 21 S. E. 550, 47 Am. St. Rep. 823, and Davis v. Austin, 22 Tex. Civ. App. 460, 54 S. W. 927. Courts generally hold, and our court has recognized it to be the correct rule, that a pedestrian has a right to the free use of any portion of the sidewalk which is open for public use, and he has a right to assume that it is free from obstruction and in a reasonably safe condition for travel; and if, while passing over and upon a sidewalk in a street, his attention is distracted so that he fails to observe an obstruction placed upon the sidewalk where he has no right to expect it, and falls over same and is injured, the question as to whether or not he was proceeding with due care for his own safety is properly a question for the jury. It is likewise held that if, while passing along the pavement, the attention of the pedestrian is attracted across the street or overhead and away Blocker v. City of Owensboro, &c. from the pavement, and while so attracted he comes upon and falls over an obstruction in the street at a point where he has no right to reasonably expect it to be and is injured, it is the province of the jury to say whether or not, under all of the circumstances, he is guilty of such contributory negligence as to deny him the right to recover. We are aware that in some jurisdictions a contrary rule is held, notably in Penr sylvania, and a distinction is there made between subjective cases and cases external or objective, but no such distinction is made in this State, and the same rule applies whether the detracting cause is some external object or the concentration of the plaintiff's mind and thought upon some absorbing topic or question. We are of opinion that in denying the appellant's motion for a peremptory instruction the trial judge did not err, and the judgment is therefore affirmed. CASE 7.-ACTION BY CLARA BLOCKER AGAINST THE CITY Blocker v. City of Owensboro, &c. Appeal from Daviess Circuit Court. T. F. BIRKHEAD, Circuit Judge. Judgment for defendants, plaintiff appeals — Affirmed. 1 Indemnity - Implied Contracts - Municipal Corporations in 129 75 f136 665 |