[191 U.S. 247, 248] Messrs. Charles Cowles Tucker and Henry E. Davis for plaintiffs in error.
Mr. Justice White delivered the opinion of the court:
The plaintiffs in error-husband and wife-sued to recover the amount of the damage alleged to have been sustained from a personal injury suffered by the wife as the result of a fall on a sidewalk in the District of Columbia. We shall hereafter refer to the wife as the plaintiff. The fall was alleged [191 U.S. 247, 252] to have been caused by a hole resulting from an uncovered water box in the sidewalk, which appliance for a long time had been allowed to be in a dangerous condition through the neglect of the defendant. At the close of the evidence the court instructed a verdict for the defendant on the ground of the contributory neglect of the plaintiff; and, on appeal, the action of the court in so doing was affirmed. 17 App. D. C. 401.
It is not contended at bar, if it be found that error was committed in taking the case from the jury because of the contributory neglect of the plaintiff, nevertheless, the judgment should be affirmed because there was no adequate proof to go to the jury on the question of the negligence of the defendant. The sole controversy, hence, is whether the case was rightly taken from the jury because as a matter of law, contributory neglect on the part of the plaintiff was demonstrated.
Two elements of fact are involved in determining whether the alleged contributory neglect of the plaintiff was a question for the jury or for the court. The first is, what were the undisputed facts? and the second, whether such facts necessarily engender the ultimate inference of fact as to contributory neglect. The elementary law is that issues of fact are to be decided by the jury. But where the probative facts are undisputed, and where all reasonable minds can draw but one inference from them, the question to be determined is one of law for the court. Marande v. Texas & P. R. Co. 184 U.S. 173, 186 , 46 S. L. ed. 487, 494, 22 Sup. Ct. Rep. 340, and cases reviewed and cited.
In other words, the principle is that where there is no disputed issue of fact, and in reason no controversy as to the inferences to be drawn from the undisputed facts, there can be no real question of fact to be passed on by the jury. Were the facts bearing on the question of contributory negligence undisputed, and, if so, could reasonable minds deduce only one inference from them? The court below recited what it deemed to be the undisputed facts concerning the water box and the event which took place at the time of the fall of the plaintiff on the sidewalk, as follows: [191 U.S. 247, 253] 'The water box was in the sidewalk at the bottom of three steps which led from a brick-paved landing at the front of the plaintiff's house: and there was no place of egress from the house to the street other than by these steps. The box was so situated about midway of the steps that, in order to go from the lowest step to the sidewalk, it was necessary to go either to the right or to the left, which it would have been safe to do, or to take an unusually long step, at all events, unusually long for the female plaintiff, in order to step over the box and clear it. It was about 4 inches square, projecting irregularly above the level of the street, and was without covering of any kind; and its condition was known to the District authorities, for the inspector of plumbing, who had come to the house at the plaintiff's request to inspect the plumbing, had made some remark to her about it. It was in the same dangerous condition at the time of the commencement of the plaintiff's occupancy of the house, about nine months before the accident, and so remained without change. And it may be added that it was visible from the door of the plaintiff's house.
To determine the answer proper to be given to this question requires an ascertainment of the extent of the care which the law exacted under the conditions shown by the undisputed facts in the case.
The extent of the legal duty which the court below deemed rested upon the plaintiff must be ascertained from the following and only passage referring to the subject contained in its opinion:
As the rule of law which the court deemed to be applicable was thus stated solely by reference to a prior case which the court had decided, that case must be examined to determine whether the extent of the duty which the court was of opinion rested upon the plaintiff in this case was correctly defined. District of Columbia v. Brewer-the case referred to- was decided in 1895. 7 App. D. C. 113. The case was this: The property owners on Brown street had constructed along a side of that street, where there was no paved sidewalk, a board walk. After the erection of this structure the District of Columbia graded the street, so that the bed of the street was lower than the board sidewalk by about 10 inches. When this grading was done, at the request of the property owners the board walk was left undisturbed. One of the residents of the street made a driveway from his premises to the street, cutting out for such purpose a space through the board walk 10 feet wide. On a winter night, snow being on the ground, Brewer, the plaintiff in the case, was on his way to his home, which could have been reached by another street than the one on which the board walk was situated. Brewer knew the [191 U.S. 247, 256] situation of the board walk above grade and the cut through it for the private roadway. As, however, the street upon which the board walk existed was lighted, and the other street was not, and as there was less snow on the board walk than in the center of the street, Brewer chose to use the lighted street, and in doing so to walk along the board walk, instead of going into the middle of the street. On arriving at the commencement of the board walk he stepped up thereon, and on reaching the point where the board walk had been cut for the driveway he fell and suffered the injury for which he sought compensation. There was a verdict in his favor. The appellate court, after saying that the proof clearly established negligence on the part of the District of Columbia, approached the question of the contributory negligence of the plaintiff. It pointed out that the plaintiff knew of the dangerous condition of the board walk when he chose to go along it, and the magnitude of the risk which was taken by him in using the board walk in the nighttime, with the snow on it, was referred to. The court then described what took place at the moment when Brewer suffered the fall at the place where the roadway had been cut, and observed (p. 116): 'A similar accident might have befallen him had he slipped at some other point and fallen from the raised board walk.' This remark would tend to indicate that it was deemed that the board walk from its elevation above the grade, with snow on it, was equally dangerous at all points, to the knowledge of Brewer, as it was at the driveway. The statements previously referred to were, however, immediately followed by this:
From this analysis of the opinion in the Brewer Case, we find it difficult to say precisely upon what theory the ruling there [191 U.S. 247, 257] made was treated as decisive of this case. We say this for the reason that the conclusion of the court in that case would seem to have been placed upon the very dangerous condition of the street and the extreme hazard arising from its use under the circumstances, thus precluding every reasonable inference that Brewer could, consistently with ordinary prudence, have elected to use the street at the time and under the conditions shown by the undisputed proof. It is insisted, however, that the Brewer Case was held by the court below to be applicable to this, because it was deemed that it had been decided in that case that where a defect existed in a highway, and was known to one who elected to use such highway, such election, even if it were justified by the dictates of ordinary prudence, nevertheless must be held, as a matter of law, to entail the consequences of a want of ordinary care and prudence. And this proposition substantially embodies the asserted principle of law which was relied upon at bar as sustaining the judgment below.
We are of the opinion, however, that the rule as thus contended for is unfounded in reason and unsupported by the weight of authority. When analyzed, the proposition comes to this, that no person can, as a matter of law, without assuming all the risk, use the streets of a municipality where he knows of a defect therein, even although it be that, in the exercise of a sound judgment, it might be deemed that with ordinary care and prudence the street could be used with safety. The result of admitting the doctrine would be to hold that all persons in making use of the public streets assumed all risks possibly to arise from every known defect or danger. That this is the result of the proposition may be aptly illustrated. Take a street across which runs a railroad track, whereon cars are moved by steam or other motive power. All persons knowing of this fact would know also that there was some danger in crossing. They, therefore, must either abstain altogether from crossing, or, if they do so, be subject, as a matter of law, to the consequence of the reckless opera- [191 U.S. 247, 258] tion of the railway, without reference to the care exercised in the use of the street for the purpose of crossing. Indeed, the proposition would imply that everyone who used the public streets with the knowledge of a defect existing therein would be guilty, if an injury was by them suffered as a result of such defect, of contributory negligence, without the existence of any neglect whatever; for this would necessarily result from saying that one who had made a careful use of the streets was yet guilty of neglect in doing so. Reduced to its last analysis, the principle contended for but asserts that the ordinary rules by which negligence is to be determined do not apply to the use of the public streets, since those who use such streets with a knowledge of a possible danger to arise from a defect therein must, as a matter of law, have negligence imputed to them, although in choosing to make use of the streets, and in the mode of use, the fullest possible degree of judgment and care was exercised. The result of this would be to relieve the municipality of all duty and consequent responsibility concerning defects in highways, provided only it chose to give notice of the existence of the defects.
There may undoubtedly be found in some of the adjudged cases concerning the right to recover for damage suffered from the neglect of a municipality to repair a highway, expressions which lend support to the proposition relied on, and it may be true to say, also, that there are some cases which seem to directly support the contention. But, as we have shown, such a doctrine is inconsistent with reason, and, as we shall now proceed to point out, is in conflict with what we deem to be the weight of authority. In Dewire v. Bailey, 131 Mass. 169, 41 Am. Rep. 219, the action was brought to recover from the owner of a building for damages occasioned to one who had fallen on a plank sidewalk covered with snow and ice, on his way out of the building. The proposition was that the injured person knew of the existence of the snow and ice on the walk, and therefore, by electing to use it, assumed the risk, and was as a matter of law, conclusively presumed to be deemed guilty [191 U.S. 247, 259] of contributory negligence. In reviewing this contention, the court, through Field, J., said (p. 170, Am. Rep. p. 219):
The court further said:
And the prinicple announced in the cases just referred to was substantially reiterated in Pomeroy v. Westfield, 154 Mass. 462, 28 N. E. 899; Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155, 29 N. E. 464; Coffin v. Palmer, 162 Mass. 192, 38 N. E. 509, and Shipley v. Proctor, 177 Mass. 498, 59 N. E. 119.
Although in New York the burden in negligence cases is cast upon the plaintiff to show affirmatively his observance of due care, the rule for determining the existence of contributory negligence is like that which was declared in the Massachusetts cases just cited. In Pomfrey v. Saratoga Springs, 104 N. Y. 459, 11 N. E. 43, the damage sued for was occasioned by a fall sustained in attempting to pass over an embankment of snow and ice which had accumulated upon the sidewalk. The defendant requested the court in effect to charge the jury that if the plaintiff saw the obstruction, and chose to attempt [191 U.S. 247, 261] to pass over it, and not go around it, she could not recover. The action of the trial judge in refusing to give such instruction was approved by the court of appeals, that court saying (p. 469, N. E. p. 47):
The case just referred to was approved and followed in Shook v. Cohoes, 108 N. Y. 648, 15 N. E. 531. And also, in Weston v. Troy, 139 N. Y. 281, 34 N. E. 780, it was declared by the court:
Quite recently, in a case decided October 6, 1903, and not yet officially reported (Walsh v. Central New York Teleph. & Teleg. Co. [N. Y.] 68 N. E. 146), the doctrine of the previous cases was recognized and applied.
The cases which are stated in the margin enforce, in sub-
Alabama-Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422; Birmingham v. Starr, 112 Ala. 98, 20 So. 424. Georgia-Samples v. Atlanta, 95 Ga. 110, 22 S. E. 135. Illinois-Sandwich v. Dolan, 141 Ill. 430, 31 N. E. 416. Indiana-Columbus v. Strassner, 124 Ind. 482, 25 N. E. 65; Bedford v. Neal, 143 Ind. 425, 41 N. E. 1029; Pittsburgh, C. C. & St. L. R. Co. v. Seivers, 67 N. E. 680. Iowa-Nichols v. Laurens, 96 Iowa, 388, 65 N. W. 335; Graham v. Oxford, 105 Iowa, 709, 75 N. W. 473. Kansas-Maultby v. Leavenworth, 28 Kan. 745; Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; Langan v. Atchison, 35 Kan. 318, 57 Am. Rep. 165, 11 Pac. 38; Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217. Maryland-Alleghany County v. Broad-waters, 69 Md. 533, 16 Atl. 223. Michigan-Harris v. Clinton Twp. 64 Mich. 447, 31 N. W. 425; Dundas v. Lansing, 75 Mich. 499, 5 L. R. A. 143, 42 N. W. 1011; Germaine v. Muskegon, 105 Mich. 213, 63 N. W. 78. Minnesota-McKenzie v. Northfield, 30 Minn. 456, 16 N. W. 264. Missouri-Maus v. Springfield, 101 Mo. 618, 14 S. W. 630; Cohn v. Kansas, 108 Mo. 393, 18 S. W. 973; Gerdes v. Christopher & S. Architectural Iron & F. Co. 124 Mo. 347, 25 S. W. 557, 27 S. W. 615; Beauvais v. St. Louis, 169 Mo. 500, 69 S. W. 1043, and cases cited. Vermont-Coates v. Canaan, 51 Vt. 131, 137. Washington-Jordan v. Seattle, 26 Wash. 61, 66 Pac. 114. [191 U.S. 247, 262] stance, the principle enunciated in the Massachusetts and New York cases just referred to.
We take from a few of those cases some pertinent passages. In Gerdes v. Christopher & S. Architectural Iron & F. Co. 124 Mo. 347, 25 S. W. 557, 27 S. W. 615, the rule was thus tersely stated:
In Sanduich v. Dolan, 141 Ill. 430, 31 N. E. 416, the principle was thus stated:
In Graham v. Oxford, 105 Iowa, 709, 75 N. W. 473, the court said:
And the rule was well settled in the District of Columbia prior to the decision in the Brewer Case. Mr. Justice Cox, in delivering the opinion in Muller v. District of Columbia, 5 Mackey, 287, said:
The same view of the law was taken subsequently in Corts v. District of Columbia, 7 Mackey, 277. The opinion of the court (p. 289) cites approvingly the following passage from the opinion in the case of Prince George's County v. Burgess, 61 Md. 31, 48 Am. Rep. 88.
The principle laid down in all these authorities harmonizes with the English rule as announced in the case of Clayards v. Dethick, 12 Q. B. 439. That case is thus digested in Pollock on Torts (p. 388):
Concluding, as we do, that the fact that the plaintiff, when she elected to descend the steps from her residence to reach the sidewalk, had knowledge of the existence of the uncovered water box at the foot of the steps, was not alone sufficient to charge her with contributory negligence as a matter of law, it follows that the judgment below was erroneous if it rested upon such theory. But as the knowledge of the existence of the defective water box would have been sufficient to impute contributory negligence per se, as a matter of law, if the hazard resulting therefrom to one seeking to pass over it from the steps was so great that no reasonably prudent person would have made the attempt, it remains only to consider the case in that aspect. Of course, from that point of view the question is, Did the facts proved as to the situation of the water box and the attempt of the plaintiff to step across it from the stoop so conclusively give rise to the inference of a want of ordinary care in making the attempt that no reasonable mind could draw a contrary conclusion? This question is readily answered when it is seen that the undisputed fact was that the water box at its outer edge was only about 4 inches from a line drawn from the tread of the step nearest the sidewalk to the ground. Whilst it is true that the undisputed proof was that the plaintiff was aware of a danger from the box when she sought egress from her residence, and judged that a longer step than usual would be required to cross over it, it cannot be in reason said that all reasonable minds must draw the conclusion that contributory negligence necessarily, as a matter of law, resulted from the act of attempting to step over the box to the sidewalk. This is especially so in view of the undisputed testimony given by the plaintiff that she was keeping the water box in mind, and was exercising all possible care, and had on previous occasions safely stepped over the [191 U.S. 247, 266] box. This condition of proof, we think, made a case proper to be passed upon by the jury.
The conclusion just stated is not affected by the contention that when the plaintiff reached the tread of the last step she might, by stepping to one side or the other, have avoided the water box, and therefore, as she elected to cross over the box, she was guilty of contributory neglect. This but reiterates in another form the proposition that by electing to use the steps to reach the sidewalk, with knowledge of the existence of the water box, contributory negligence as a matter of law resulted. The act of attempting to step from the tread of the last step over the water box is to be tested by the general principle governing the right to use a highway with knowledge of a defect therein. Coming to apply such principle, the question is this, Was the situation of the water box and the hazard to result from an attempt to step over it so great that the plaintiff, with the knowledge of the situation, could not, as a reasonably prudent person, have elected to step across the box, instead of stepping to the sidewalk from either side of the tread of the last step? And this, we think, was, under the undisputed proof, a question for the jury, and not for the court.
The judgment of the Court of Appeals of the District of Columbia is reversed, with instructions to that court to reverse the judgment of the Supreme Court of the District of Columbia, and to grant a new trial.
Mr. Justice Brewer, Mr. Justice Brown, and Mr. Justice Peckham dissent.