
    HERRING v. CITY OF ST. JOSEPH.
    
    Municipal Corporations — Defective Streets — Injuries to Pedestrians — Contributory Negligence — Diverted Attention.
    Where packages plaintiff was carrying in her arms became disarranged, and while she was rearranging them, her attention being diverted, she came closer to a defective gutter than she thought she was, and stepped into it, her contributory negligence is a proper question for the jury.
    Error to Berrien; Coolidge, J.
    Submitted June 10, 1904.
    (Docket No. 146.)
    Decided September 13, 1904.
    Case by Nettie Herring against the city of St. Joseph for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    
      N. A. Hamilton, for appellant.
    
      James O’Hara, for appellee.
    
      
       Rehearing denied December 7, 1904.
    
   Carpenter, J.

On the 11th of May, 1903, plaintiff was injured by stepping into a gutter on one of the streets of .the city of St. Joseph. She brought this suit for compensation, and recovered a small verdict and judgment. No question is raised in this court, respecting defendant’s negligence, and therefore we do not consider that question. We are asked to reverse the judgment solely upon the ground that the plaintiff’s own testimony shows that she was guilty of contributory negligence.

It appears from that testimony that the existence of the gutter was well known to plaintiff; that it was broad daylight when she stepped into it; that she was carrying packages of merchandise in her arms; that “They got disarranged, and I * * * was arranging them. I hadn’t got to the gutter yet, but just about the time I got finished, I was nearer the gutter than I thought I was, and the consequence was that I got into the gutter.” That her “attention had been diverted to the packages,” and. she “ did not know she was so close to this place.”

We think that under this testimony the question of plaintiff’s contributory negligence was properly submitted to the jury. See Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Graves v. City of Battle Creek, 95 Mich., at page 271 (54 N. W. 759, 19 L. R. A. 641, 35 Am. St. Rep. 561); Belyea v. City of Port Huron, 136 Mich. 504 (99 N. W. 740). See, also, Cumisky v. City of Kenosha, 87 Wis. 286 (58 N. W. 395), and Crites v. City of New Richmond, 98 Wis. 55 (73 N. W. 322).

As no other complaint is made by appellant, the judgment is affirmed.

The other Justices concurred.  