Negligence — Municipalities — Hole in highway — Notice — Constructive notice — Contributory negligence.
1. A person who steps into a dangerous hole in the highway, cannot recover against the city for neglecting to make the crossing safe, when she has repeatedly passed by it immediately before the accident, and would have then seen the defect if she had given heed to where she was going. Under such circumstances she, as well as the city, is affected with notice of its existence.
2. Where a defect in a highway is so small and unimportant as not to attract the attention of pedestrians, it is likewise too small and unimportant to require the city to take constructive notice of it.
Argued November 30, 1928.
OPINION BY MR. JUSTICE SIMPSON, January 7, 1929:
Plaintiff appeals from the refusal of the court below to set aside a nonsuit, entered on the trial of her action to recover damages for injuries to her, caused by her stepping into a hole in the roadway, at the usual crossing place of one of the public streets of the city. In her statement of claim, she says the hole was about four feet long, four feet wide and six inches deep, was dangerous, and had remained in that condition for so long a time that the city was affected with constructive notice of these facts, and was bound to make the crossing reasonably safe, which this one was not. In her testimony she says the hole was two feet long, two feet wide and five inches deep. The time of the accident was 10:30 A. M., and plaintiff excused her failure to observe the hole, by asserting it was then filled with snow and slush. She admitted, however, she had passed over that crossing every working day for three months, in going to and from her place of employment. She is, therefore, impaled on one or the other of the horns of this dilemma: either the hole was so large and dangerous that she was bound to have seen it in her journeyings to and fro, and hence was guilty of contributory negligence in stepping into it at the time of the accident; or it was so small and unimportant as not to have attracted her attention, in which event it was likewise too small and unimportant for the city to have had constructive notice of its supposed dangerous condition, as would be necessary to charge it with negligence for failing to repair the alleged defect.
The judgment of the court below is affirmed.