
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Sept. Term, 1900.)
    Before Haynes, Parker and Hull, JJ.
    MARY MATTHEWS v. THE CITY OF TOLEDO.
    
      Injury by defect in plank sidewalk — Negligence, not proximate cause of injury,no defense—
    Plaintiff, while walking on a plank sidewalk, was injured by one of the planks flying up under the feet of another person stepping on one end of it, and tripped. It appeared that the sidewalk was in abad condition and rotten,so that the nails would not hold the planks to the stringers, which condition was however not visible without some examination. It appeared further that the walk had been in this condition for about two years before the accident. Held:
    (1) . A charge: “If plaintiff’s own negligence contributed in any degree to the bringing of this misfortune upon herself, she is not entitled to complain of the city of Toledo, although the sidewalk may have been defective and the officers of the city having those matters in charge may have been guilty of negligence in failing to repair or remedy that defect'’, is erroneous. Unless the negligence of the person injured contributed directly to, or was a proximate cause of the injury, it does not preclude a recovery.
    
      Same — Latent defects — Notice to city — Duty to examine—
    
    (2) . A charge: “If it appears that this sidewalk was in such condition that a person passing over it in the exercise of reasonable care and prudence would not discover the defect, but would regard it as safe, the city cannot be held guilty of negligence for failing to know that there may have been a latent defect in the walk”,is erroneous where it appears that the walk in question has been in such defective condition for over two years. The city may not sit silently by and say that it did not know anything of the defective condition of the walk. There should be some examination, at some time, of these walks, and they should be examined with reference to the whole walk and the condition of the stringers, to ascertain whether they would hold the planks.
    
      Latent Defect—
    (3) . A defect which exists in the whole structure of a sidewalk, so that it was not in a condition to be traveled over, is not a latent defect.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error is filed in this case for the purpose of reversing the judgment of the court of common pleas in an action brought by Mary Matthews against the city of Toledo, seeking to recover for personal injuries which she received in falling upon a sidewalk in the city of Toledo, which she alleges was in a defective condition. It appeared upon the trial of the case that the particular street upon which she fell was called McKinley avenue, and lies in the eastern part of the city; that she was coming to the city from the country and came on to this sidewalk, and that in walking with some person,that person stepped upon the end of a plank which flew up, and she was tripped and fell. It is alleged that the sidewalk was in a defective condition, especially in that the stringers were rotted so that they would not hold nails and would not keep the planks down. It further appears by the record that that sidewalk had been in this condition nearly two years, and that 'the inhabitants from time to time had been in the habit of putting down a plank,and occasionally one would nail a cleat upon a plank and try to hold it down,and in various ways they had made efforts to keep the sidewalk in a'passable condition; and, so far as appears from the record, the city had never done anything to it,

Upon the close of the evidence the court charged the jury, and*its general charge is fair and sets forth the law; but, coming towards the conclusion of the charge, the court says this, in regard to the alleged negligence of the plaintiff,that:

“If her own negligence contributed in any degree to the bringing of this misfortune upon herself, she is not entitled to complain of the city of Toledo, although the sidewalk may have been defective and the officers of the city having those matters in charge, may have been guilty of negligence in failing to repair or remedy that defect.”

It will be observed that the phrase is: “If she contributed in any degree.” Prior to that he has charged that she should use care and judgment in walking upon it.

In the case of Schweinfurth v. The C. C. C. & St. Louis Ry. Co., 60 Ohio St., 215, the supreme court had that question before them and have made a rule which is the law of Ohio to-day so far as we are aware. I read from the second of the syllabi:

• “In an action for negligence, it is not error to refuse an instruction, that the defendant cannot be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or as a proximate cause of the injury, it does not preclude a recovery.”

That matter is discussed in the body of the opinion, and authorities are cited which show that in this part of the charge — although it was not stated in argument — -there is error occurring in regard to the degree of negligence that plaintiff should have been chargeable with, in order to prevent an action; but the material part of the charge of the court,and the one that we really pass upon is this:

“It is your duty to look carefully into the evidence in the case in determining whether or not the city of Toledo is guilty of any negligence of that ordinary care which the law imposes upon it with reference to this particular walk. If it appears from the evidence that this sidewalk was in such condition that a person passing over it in the exercise of reasonable care and prudence would not discover the defect, but would regard it as safe, the city cannot be held guilty of negligence for failing to know that there may have been a latent defect in the walk, A latent defect in a sidewalk is one that does not appear to the eye,or would not appear or be known by a person walking over it if he exercises of ordinary care, The law does not presume notice to municipal corporations of a latent defect; and before a municipal corporation can be held in damages for injuries caused by latent defects in its walks, the jury must find that the municipal corporation has had actual notice of the existence of such latent defects. And it is the duty of the jury to consider the testimony with reference to the character and condition of the walk, the nature of the defect, and the situation of the sidewalk at the point complained of, where it is claimed the injury happened.”

We think in that the court erred. The practical effect was to charge the jury that if at the moment the lady passed the walk appeared so that she would not be guilty of contributory negligence in passing over it, therefore the city would not be guilty of negligence in leaving it in the condition it then was. It was shown that this walk had been out of repair for over two years by those who nailed down the planks from time to time; the nails would not hold, and the planks were loose and continually flying up or getting off. In some instances people would come along and go over and throw the loose planks into the middle of the street; and thereupon the neighbors would put the planks back again and try to hold them in place.

We think it clear that it was the duty of the city to make some examination of the sidewalks, and we cannot think or hold that the city may sit silently by, the officers of the city, in their offices, and say that they did not know anything about it. There should be some examination, at some time, of these walks,and they should be examined with reference to the whole walk and the condition of the stringers — whether they would hold the planks. Certainly there is nothing so dangerous as to have a plank in a sidewalk that is not fastened down and will not be held down by the nails driven in it, and is so that a person stepping upon one end throws the other end up in front of another person — that is a most dangerous condition of affairs, and a person is liable to meet with a most severe accident under just those conditions. Now we think the duty of the city was to make an examination from time to time and look after such defects as well as for latent defects, if you want to call that a latent defect which exists in the whole structure of the sidewalk so that it was of no use in supporting, maintaining or keeping the sidewalk in a condition to be traveled over. The charge had proceeded before that in regard to sidewalks, following perhaps some of the lines of the decision of the supreme court. The supreme court have held that in these outlying parts of the city, in regard to snow upon the ice, it was not expected that the city authorities could traverse the whole city immediately after a storm and thus ascertain the condition of the street; but we know of no case which would apply to a case of this kind and hold that they were excused from an examination of the sidewalk for two years and leaving the street out of repair.

E. G. Love and A, W. Fraser, for Plaintiff in Error.

E. Brailey, City Solicitor, for Defendant in Error.

For these reasons the judgment of the court of common pleas will be reversed and the cause remanded for another trial.  