
    AMELIA ROSE FLEMING v. CITY OF MINNEAPOLIS.
    
    June 25, 1926.
    No. 25,490.
    Defendant entitled to directed verdict on question of negligence.
    1. Evidence examined and found to sustain the direction of a verdict for defendant, on account of a lack of proof of negligence on its part.
    Question of contributory negligence for jury.
    2. Evidence was sufficient to make a question for the jury as to contributory negligence of plaintiff.
    Municipal Corporations, 28 Cyc. p. 1358 n. 47; p. 1359 n. 49; p. 1501 n. 22, 28; p. 1510 n. 71.
    
      Action in tie district court for Hennepin county to recover for personal injuries. Tie case was tried before Bardwell, J., wio directed a verdict in favor of defendant. Plaintiff appealed from an order denying ier motion for a new trial.
    Affirmed.
    
      Smith & Callahan and William B. Movery, for appellant.
    
      Neil M. Cronin, City Attorney, and John T. O’Donnell, Assistant City Attorney, for respondent.
    
      
       Reported in 209 N. W. 902.
    
   Quinn, J.

Action to recover for personal injuries wiici plaintiff' sustained on September 18, 1924, as tie result of slipping and falling on one of tie public streets in tie city of Minneapolis. At tie close of plaintiff’s testimony, tie court directed a verdict in favor of tie defendant upon tie ground tiat tie evidence failed to siow negligence on tie part of defendant and because it appeared tiat tie plaintiff was guilty of contributory negligence. Prom an order denying ier motion for a new trial, plaintiff appealed.

Plaintiff resided in an apartment facing to tie norti on Fourti street soutieast in tie middle of tie block, between Ninti avenue on tie east and Eigiti avenue on tie west in tie city of Minneapolis. Tiere was a double street car line along tie center of Fourti street. Tie street was paved witi creosote blocks. Tiere was a concrete walk extending norti from tie apartment to tie street. Tie regular stopping place of tie street cars going downtown was immediately east of Ninti avenue on tie norti side of Fourti street.

Just before tie noon iour of tie day in question, a crew iad sprayed Fourti street on tie norti .side of tie car tracks witi petroleum oil, using one-tenti of a gallon to tie square yard. Plaintiff left ier apartment at about one o’clock to go downtown on the street car. Sie testified tiat sie walked out to tie curb, tien diagonally toward Ninti avenue to the street car track; tiat sie tien noticed a substance on tie street norti of tie street car track so sie walked a few steps along tie car track, tien noticed some bare, iigi spots wiere tie oil iad run down; tiat tie pavement was quite rough there and she attempted to step on one of those spots to get across over to the curb because she could see a car coming and that, in stepping on one of those spots, her feet went from under her and that she did not know what happened after that.

“Q. Where were you when you noticed that there was some foreign substance on the street? A. I was just about half way across the street. I was in a hurry, and I just stepped over the curb and went to cross the street, and I noticed it, and I kind of walked a few steps on the car tracks, and then I noticed these spots, and I thought I would get up on to the curb. I [could] see a car coming. When I stepped on those [high spots] my feet went from under me.”

Upon cross-examination, she testified that she walked down the car track a few feet on the first track, then on the second track a yard or more; that she did not step directly into the oil; that from where she stood she could see these spots and she thought a couple of steps would take her to the curb; that the spots appeared to be cedar blocks, kind of bulged up; that they looked a little drier than the other portions; that she took long steps; that when "she stepped from one spot to the other she stepped over the oily substance; that she does not know whether she took two steps; that if she took one step she would be about half way from the north rail to the curb; that if she took two steps she would be pretty near the curb; that she fell into the oil, her head and shoulders toward the curb, and that the men helped her up; that her arm was broken. We are of the opinion that the evidence made a question for the jury as to plaintiff’s contributory negligence.

It appears from the undisputed testimony that the pavement sloped from the street car track north to the curb; that the oil was heated to a temperature of from 150 to 200 degrees and sprayed upon the pavement at that temperature; that, at the time of the accident, the oil had run so that it was thicker near the curb. The evidence is conclusive that a very thin spray of oil was upon the pavement at the point of the accident; that the use of such oil for the treatment and preservation of the blocks was not unusual; that it was the kind of oil commonly in use for such purpose in many of the larger cities throughout the country; that the manner of its application is well established and recognized by other cities in this latitude. We are unable to discover any evidence of negligence on the part of the city or its employes in the application of such treatment nor of the material used.

It may be true as testified to by plaintiff and others that the plaintiff’s clothing was badly saturated with oil, but it is clear from the manner in which she fell that she was cast upon the pavement where the oil was much thicker than at the point where she slipped and fell. According to her own testimony the pavement was higher and drier there than at other portions and she says that she did not step into the oil where it was thicker.' It was and is the duty of the city to exercise reasonable care to make and keep its streets and walks reasonably safe for persons traveling thereon. However, we find no evidence showing any want of care on the part of the city in connection with the treatment of the pavement at the point in question. For this reason we are of the opinion that the learned trial court was right in directing a verdict for the defendant upon the ground of a failure of the evidence to show negligence on its part.

Affirmed.  