
    John Q. Larmon vs. District of Columbia.
    Law.
    No. 25,131.
    Decided December 13, 1886.
    The Chief Justice and Justices Cox and Merrick sitting.
    1. The District of Columbia is' bound to’ put and keep all public streets and sidewalks, which are placed by law under its government, in such condition and state of repair as- to make all parts-thereof safe for the kind of public travel for which they are designed.
    2. It is not sufficient that they are in such condition as to be reasonably safe in daylight or under strong light; their condition must be such that they will be reasonably safe in all conditions of light in which the public are entitled or required to travel upon or use them.
    8. In determining whether or not an alleged defect in the sidewalk was known to the authorities of the District, it is- not necessary to show actual notice of such defect, but if the same, from its character, notoriety, oi' continuance, ought to have been known to those officers of the District charged with the inspection of the streets and sidewalks, then such notice may be imputed to the District. ,
    4. The existence for over a year of a defect such as is described in this case is sufficient to impute such notice.
    5. In the absence of knowledge to the contrary,, the traveler is entitled to presume that the sidewalk is in a reasonably safe condition for travelers at all points and to the full width thereof.
    6. In an action to recover damages of the District by reason of injuries received from a fall caused by a defect in the sidewalk, the negligence on. the part of the plaintiff which may be relied on, as a defence must be such an act of carelessness or negligence as a man of ordinary prudence, acting under the same circumstances in which the plaintiff was acting when h© received the injury, would not have been guilty of.
    7. In such a case the plaintiff is entitled to recover for what he shall have shown to have been the value of the time which he lost by reason of the injury, the amount of expense he was put to, including medical attendance, and such damages of a permanent nature as he has sustained by reason of the injury.
    8. in estimating such damages the jury should take into consideration the profession or business of the plaintiff and the effect of the permanent injuries received upon his ability to comfortably pursue such profession or business.
    9. The jury are also entitled to consider the pain and suffering, mental and physicial, caused to the plaintiff by such injuries.
    Motion for a new trial on a bill of exceptions.
    
      STATEMENT OR THE CASE.
    This was an action to recover damages for an injury received by the plaintiff b.y reason of a defective sidewalk, the facts being briefly as follows: The plaintiff, a government employee, being on his way home about 7 o’clock on the evening of November 9, 1880, fell into a hole or area left open and unguarded on Maryland Avenue near Twelth ■street southwest, in the city of Washington, in consequence of which his leg was broken, and on healing became an inch and a half shorter and stiffened for life.
    Evidence was given tending to show that the night was dark and that there was no street lamp or other light to disclose the defect in the sidewalk. That the hole was about two and a half feet wide, four feet one inch long and about three feet deep, and was entirely unprotected ; and that the top was “flush ” with the sidewalk. It was also in evidence that the sidewalk had been in that condition for over a year. Further evidence tended to show that the “hole” as it was termed was not an area in the proper sense of that word, but an opening with its side walls walled up with brick, and that it had been constructed to allow light and ventilation to the cellar of the adjoining premises. These are all the facts necessary to be stated in order to understand the decision of the court.
    At the conclusion of the evidence a number of prayers for the instruction of the jury were presented by both sides; among which were the following on the part of the plaintiff, which were granted by the court, and to each of which the defendant separately excepted:
    “ The District government is bound to put and keep all public streets and sidewalks, which are placed by law under the government of the District, in such condition and state of repair as to make all parts of such streets and sidewalks safe for the kind of public travel for which they are respectively designed. It is not sufficient that such streets and sidewalks are in such condition as to be reasonably safe in daylight or under strong light, but, on the other hand, their condition- must be such that they will be reasonably safe in all conditions of light in which the public are entitled or required to travel upon or use them.
    “That in determining whether or not the said defect in the pavement (if the jury find from the evidence that there was such defect) was known to the defendant, it is not necessary to show actual notice of such defect to defendant; but if the same, from its character, notoriety or continuance, ought to have been known to the proper officers of the defendant charged with the inspection of the streets and sidewalks, then such notice should be imputed to the defendant.
    “ That if the jury find from the evidence that the said defect in the pavement had existed for about a year prior to the accident, knowledge of the same on the part of the defejadant’s officers charged with the inspection of the streets and sidewalks, may be reasonably inferred.
    “ The plaintiff, in using the sidewalk at the time of receiving the injury complained of in the declaration, was entitled to presume, in absence of knowledge by him to the contrary, that the sidewalk was in a reasonably safe condition for travelers upon the same at all points upon such sidewalk and to the full width thereof.
    “ The negligence on the part of the plaintiff which may be relied on as a defence to his action, must be such an act of carelessness or negligence as a man of ordinary prudence, acting under the same circumstances in which the plaintiff was acting .when he received the injury, would not have been guilty of.
    “If the jury shall find from the evidence that the plaintiff is entitled to recover, then it becomes the duty of the jury to ascertain, from the evidence, the damages which the plaintiff has sustained by reason of the injury complained of in his declaration. In fixing the amount of his damages, the jury will estimate and ascertain from the evidence the value of the time which the plaintiff lost by reason of the injury, the amount of expense he was put to by reason of such injury, in the medical attendance which he received, appearing by the evidence to have come from said injury.
    
      “Also, tbe jury will include in tbe estimate of damages, sucb injuries to the limb fractured of a permanent nature as the evidence shows the plaintiff has suffered by tbe fall and fracture disclosed by the evidence.
    “Also in estimating the damages they should take into consideration the profession or business of the plaintiff and the effect of the permanent injuries received, upon his ability to comfortably pursue his said profession or business, if the jury shall find such permanent injuries.
    “Also, in estimating said damages, the jury are entitled to consider the pain and suffering, mental and physical, caused to the plaintiff by the said injuries.”
    A verdict of $3,000 for plaintiff-was rendered and judgment given thereon.
    Shellabarger & Wilson for plaintiff.
    H. E. Davis for defendant.
   Mr. Chief Justice Oartter

delivered the opinion of the court.

It is settled law that the District is responsible, under certain conditions, to the party injured whenever the injury results from a defective highway, where the defect is such as to render it dangerous to the wayfarer. It has control of the streets, and that power, conferred upon it by the law, charges it with the correlative duty of keeping them in repair. This hole or area, for it is called both in the declaration, was in the sidewalk, and if it was dangerous to life or limb, and neglected, the District is responsible for the neglect.

It is, however, claimed that the'District had received no notice of the existence of this defect, and it is true that there is no proof of any actual notice. But there is proof of that kind of notice which all the authorities from necessity have made equivalent to actual notice — the notice which arises from that lapse of time after which the authorities are presumed to know of a defect of this kind. In other words, the District is presumed to know what it ought to have known of the fact.

This case is covered with that kind of notice. A hole four feet long, two feet wide and three feet and an inch and a half deep, ought not to remain in a sidewalk for over a year without the knowledge of the guardians of the highways. A shorter time than that would be sufficient to charge responsibility.

But it is said that taking it for granted that notice existed and that this might have been a nuisance, there is no evidence showing it to be dangerous. No witness had been called to the stand to swear that, in his opinion, this was a dangerous defect, and this after somebody had fallen into it and broken his leg. Certainly the hole was large enough and deep enough to be dangerous, and as good a witness as could be brought to that subject was a broken thigh bone caused by it. We would be trifling with the administration of justice if we should declare, in the face of this fact, that there is no legal evidence of the dangerous character of this hole, and that we must wait until some expert has pronounced his opinion upon the subject. The court was right not to withdraw the case from the jury upon that ground.

We see nothing in this case or in the exceptions taken which can lead us to set aside the judgment rendered below.

The decision of the court therefore is that the judgment be affirmed.  