
    Schaefler v. The City of Sandusky.
    A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not be regarded as exercising ordinary prudence, andi therefore, can not maintain an action against the city, to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.
    . Error to the District Court of Erie county.
    The original action was brought by the plaintiff in the common pleas of Erie county, to recover damages of the defendant for an injury sustained from a fall occasioned by snow and ice on a sidewalk of the city, which, the plaintiff alleges, it had knowingly suffered to accumulate on the sidewalk in such a manner as to become unsafe and dangerous. He alleges that, on January 25, 1873, at about the hour of noon, while he was walking along the sidewalk, and passing thereon upon said snow and ice, without want of due care on his part, by reason of the negligence of the defendant in not removing from the sidewalk the snow and ice, he slipped and fell, whereby one of his legs was broken.
    The defendant, among other defenses, claimed that it was not the duty of the city to keep the sidewalks clear from nuisances; that it had no control of the streets and sidewalks, other than what it had through its legislative power; and that the accumulation of snow and ice complained of, was the result of natural causes, for which the city was not responsible.
    On the trial, the jury returned a general verdict in favor of the plaintiff for five hundred dollars; and with the general verdict, returned a special verdict in response to interrogatories submitted to the jury by the court, as follows:
    1. “Was the sidewalk, at the time the injury happened, aside from the accumulation of snow and ice, in good con dition and repair ? ” Am. “Yes.” .
    
      2. “Was the obstruction complained of, an unnatural and artificial accumulation of snow and ice, or a natural and ordinary one?” Ans. “A natural one.”
    3. “ Did the plaintiff' see and know the nature and character of this obstruction before, and at the time of passing over it ? And did he knowing this voluntarily pass over it ? ” Ans. “ He did.”
    4. “ Could he have easily avoided it, either on the same walk, in the sti’eet, or on the opposite side, or on any other walk, and reach his destination ? If so, how, and in what way ? ” Ans. “ He could have avoided it.”
    The defendant moved the court to render judgment on the special findings, in favor of the defendant, notwithstanding the general verdict in favor of the plaintiff. The court sustained the motion, and rendered judgment in favor of the defendant.
    The plaintiff’ excepted, and prosecuted his petition in error in the district court; and that court affirmed the judgment of the common pleas. To reverse these judgments, he prosecuted his petition in error in the Supreme Court.
    
      H. & L. H. Goodwin, for plaiutiff's in error:
    The city was liable. Shearman and Redfield on Negligence, §§ 395, 414; The City of Providence v. Clapp, 17 How. 161; Loker v. Brookline, 13 Pick. 346, 347; West v. Village of Brockport, 16 N. Y. 163-5 note; Chicago City v. Robbins, 2 Black, U. S. 418 ; Chase v. Cabat Bridge Co., 6 Allen, 512; Wallace v. Mayor, etc., 2 Hilton, 440 ; Reed. v. Northfield, 13 Pick. 94-8; Smith v. Sowle, 6 Allen, 39; Snow v. Housatonic R. Co., 8 Allen, 441, 450, and 137; Frost v. Waltham, 12 Allen, 85, 86; Whittaker v. West Boylston, 97 Mass. 273; Fox v. Sackett, 10 Allen, 535; Filer v. N. Y. Cent. R. R. Co., 49 N. Y. 47; Barton v. St. Louis R. R. Co., 52 Mo. 263; Wharton on Negligence, § 403, and authorities cited. Thurber v. Hudson River R. R. Co., 60 N. Y. 331, 332.
    
      E. B. & C. W. Sadler, for defendant in error:
    The plaintiff was guilty of contributory negligence, and can riot recover. Timmons v. Railroad, 6 Ohio St. 105: Button v. Railroad, 18 N. Y. 248; Harlow v. Humiston, 6 Cow. 189; 7 Lansing, 11; Wharton on Negligence §§ 402, 408; Davenport v. Buckingham, 37 N. Y. 568; Hubbard v. Concord, 35 N. H. 52; Horton v. Ipswich, 12 Cush. 488; Wilson v. Charleston, 8 Allen, 137; James v. San Francisco, 6 Cal. 528; 61 Id. 155; 54 N. Y. 245; 61 Barb. 437; 61 Barb. 580.
   Day, J.

The liability of the city for the unsafe condition of the streets, especially when it arises from natural causes, is contested; but the view we take of the case renders it unnecessary to determine that question; for, if it exists, and the negligence of the city be conceded, the plaintiff was not entitled to recover, if his injury resulted from the want of ordinary care on his part. His negligence is claimed to be established by the special verdict; and we think the question made on this point is decisive of the case.

In rendering .a general verdict in favor of the plaintiff, the jury necessarily found that he was without fault. Was this finding consistent with the facts specially found by them ?

The plaintiff charged that the defendant suffered snow and ice to accumulate and remain on the sidewalk, in such 'manner that the sidewalk “became unsafe and dangerous.” The unsafe and dangerous character of the obstruction was the gravamen of the complaint; for, if it did not render the sidewalk unsafe, there was no such negligence of the city as would afford a ground of complaint. It must be assumed, then, to entitle the plaintiff to recover, that the obstruction was of an unsafe and dangerous character; and the jury must have so found, or they could not have found against the defendant.

In regard to this unsafe and dangerous obstruction, the jury, by their special verdict, found that, as matter of fact, the plaintiff knew its nature and character before he attempted to pass over it; and that, having such knowledge, he voluntarily passed over it, when he could have avoided it, and reached his destination without going over it. Indeed, it is fairly inferable from the special findings that he could have “ easily” avoided the obstruction. Under such circumstances it was his duty to avoid the danger.

If the snow and ice presented a dangerous obstruction, which the defendant was bound to remove, so that it was negligence to leave it on the sidewalk, it must follow, since its “ nature and character ” were known to the plaintiff, that it was imprudence in him to venture upon it, or that, if it was prudent for him to pass over it, he did not exercise due care.

The case, as found by the special verdict, is not one where there is an obstruction not known to be perilous. In that class of cases negligence can not be imputed to one who uses such carefulness as a man of ordinary prudence would exercise. But where there is danger, and the peril is known, whoever encounters it, voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence, and therefore does so at his own risk. Darken v. City of Troy, 61 Barb. 437; Evans v. City of Utica, 69 N. Y. 166 ; Wilson v. City of Charlestown, 8 Allen, 137 ; Belton v. Baxter, 54 N. Y. 245 ; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66. This was the case of the plaintiff, as shown by the special verdict. He was, then, not without fault on his part. But the general verdict necessarily exculpates him from negligence. The special and general verdicts are therefore inconsistent. In such eases, the former controls the latter, and the court may give judgment accordingly.” Code, § 277.

It follows that the court did not err in refusing to render judgment on the general verdict, nor in rendering judgment on the special verdict in favor of defendant.

Judgment affirmed.  