Thomas v. City of Bayshore

KNIGHT, J. — Plaintiff brought this action to recover damages for injuries she claimed to have sustained as a result of a fall on a defective sidewalk on MacDonald Avenue in the defendant city. The action was tried by the court sitting without a jury, and judgment rendered in defendant’s favor, from which judgment plaintiff appeals.

The judgment was based on findings to the effect that the sidewalk at the point where plaintiff fell was in a broken and defective condition of which the defendant had knowledge, but that plaintiff also had knowledge of the defective condition thereof; that such condition was notorious and obvious, and that the plaintiff was guilty of contributory [651]negligence in using said sidewalk at the said time and place of the accident. The sole question presented by the appeal is, therefore, whether the evidence is legally sufficient to support the trial court’s affirmative finding on the issue of contributory negligence.

MacDonald Avenue is part of the MacDonald subdivision, and up to the time of the accident there had been but little building thereon. The sidewalks were put in by MacDonald, who developed the tract, and they were constructed of cement, but the construction was not substantial. There was no foundation to them, and the cement was only about three-eighths of an inch thick, so that eventually, in the block where plaintiff fell and elsewhere along MacDonald Avenue, the cement became broken, and pieces of it were gone. This condition was well known to plaintiff; she lived within a block of the scene of the accident, and had passed up and down the street many times. In fact her husband for some time had been a member of the city council, and on account of complaints made about the condition of the sidewalks an inspection had been made by some of the officials of said city, including her husband, and the council had discussed on numerous occasions ways and means to repair the sidewalks; and plaintiff was present at many of the meetings of the council while her husband was a member thereof, during which the condition of said sidewalks had been discussed. She knew also that about a year prior to her accident another resident of the town had been injured by falling in the block below where she fell. Plaintiff started to walk along the sidewalk about 7 o’clock at night during the month of January. According to her testimony, there had been a slight rain or fog, the street was wet, and it was dark. She admitted that she was familiar with the condition of the sidewalk, and frequently walked in the street rather than on the sidewalk because she knew the sidewalk was unsafe; but she stated that on this particular evening she walked on the sidewalk because she was afraid that if she used the street she would be hit by passing automobiles; and as she proceeded along the sidewalk she fell and was injured. The particular defect which caused plaintiff’s fall was a depression, “a straight down break . . . around 12 inches wide and probably 14 inches long running the width of the sidewalk, and from two to three inches deep ’ ’. She testified that she was walking along rapidly, but was attempting to be