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MOSHEUVEL v. DISTRICT COLUMBIA

November 30, 1903

MOSHEUVEL
v.
DISTRICT OF COLUMBIA



ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA

Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day

Author: White

[ 191 U.S. Page 251]

 MR. JUSTICE WHITE delivered the opinion of the court.

The plaintiffs in error -- husband and wife -- sued to recover the amount of the damage alleged to have been sustained from a personal injury suffered by the wife as the result of a fall on a sidewalk in the District of Columbia. We shall hereafter refer to the wife as the plaintiff. the fall was alleged

[ 191 U.S. Page 252]

     to have been caused by a hole resulting from an uncovered water-box in the sidewalk, which appliance for a long time had been allowed to be in a dangerous condition through the neglect of the defendant. At the close of the evidence the court instructed a verdict for the defendant on the ground of the contributory neglect of the plaintiff; and, on appeal, the action of the court in so doing was affirmed. 17 App. D.C. 401.

It is not contended at bar, if it be found that error was committed in taking the case from the jury because of the contributory neglect of the plaintiff, nevertheless, the judgment should be affirmed because there was no adequate proof to go to the jury on the question of the negligence of the defendant. The sole controversy, hence, is whether the case was rightly taken from the jury, because, as a matter of law, contributory neglect on the part of the plaintiff was demonstrated.

Two elements of fact are involved in determining whether the alleged contributory neglect of the plaintiff was a question for the jury or for the court. The first is, what were the undisputed facts; and the second, whether such facts necessarily engender the ultimate inference of fact as to contributory neglect. The elementary law is, that issues of fact are to be decided by the jury. But where the probative facts are undisputed and where all reasonable minds can draw but one inference from them, the question to be determined is one of law for the court. Marande v. Texas & Pacific R. Co., 184 U.S. 173, 186, and cases reviewed and cited.

In other words, the principle is that where there is no disputed issue of fact and in reason no controversy as to the inferences to be drawn from the undisputed facts, there can be no real question of fact to be passed on by the jury. Were the facts bearing on the question of contributory negligence undisputed, and if so, could reasonable minds deduce only one inference from them? The court below recited what it deemed to be the undisputed facts concerning the water-box and the events which took place at the time of the fall of the plaintiff on the sidewalk, as follows. 17 App. D.C. 405.

[ 191 U.S. Page 253]

     "The water-box was in the sidewalk at the bottom of three steps which led from a brick-paved landing at the front of the plaintiff's house; and there was no place of egress from the house to the street other than by these steps. The box was so situated about midway of the steps that, in order to go from the lowest step to the sidewalk, it was necessary to go either to the right or to the left, which it would have been safe to do, or to take an unusually long step, at all events, unusually long for the female plaintiff, in order to step over the box and clear it. It was about four inches square, projecting irregularly above the level of the street, and was without covering of any kind; and its condition was known to the District authorities, for the inspector of plumbing, who had come to the house at the plaintiff's request to inspect the plumbing, had made some remark to her about it. It was in the same dangerous condition at the time of the commencement of the plaintiff's occupancy of the house about nine months before the accident, and so remained without change. And it may be added that it was visible from the door of the plaintiff's house.

"It appeared in evidence that a lady had stumbled over the obstruction in the early summer of 1899, and that the plaintiff herself had stumbled over it once before, although, as she testified, she always tried to be careful, and usually went to one side or the other, and not over the box, for which, as she knew, an unusually long stride was necessary.

"On the day of the accident mentioned in the declaration the plaintiff was going out to visit a neighbor in an adjacent house. She testified that from the time she left her door, she had the box in view a part of the time, and had it in mind all the time and remembered its dangerous character; but that on this occasion she attempted to step over it, instead of going to one side, did not take a sufficiently long step, and put her foot into the hole and was thrown, with the result that she suffered serious injury. This is the substance of her testimony in the case, which is set out more in detail in the bill of exceptions. But into that detail it is unnecessary for us here to enter."

[ 191 U.S. Page 254]

     We think the facts thus recited were undisputed, except as regards the statement that it would have taken "an unusually long step, at all events, unusually long for the female plaintiff, in order to step over the box and clear it." True, a statement to that effect was made by the injured woman while under cross-examination, but she subsequently qualified this by saying that she "judged" that she would have to take an unusually long step to pass over the box. The defendant, moreover, introduced testimony, as to which there was no dispute, concerning the situation of the water-box and its dimensions, by which it was shown that the north, that is, the outer, side of the water-box was four inches from a line drawn from the tread of the step nearest the sidewalk to the ground. The undisputed testimony, therefore, was not that it would require an unusually long step, or, at all events, one unusually long for plaintiff, to clear the water-box, but that she judged it would require such a step on her part, descending from an elevation, to clear the box, although to do so would have required the making of a step covering but a distance of four inches. Were the undisputed facts as thus corrected of such a nature as to compel every reasonable mind to draw the inference that the plaintiff had been guilty of contributory negligence?

To determine the answer proper to be given to this question requires an ascertainment of the extent of the care which the law exacted under the conditions shown by the undisputed facts in the case.

The extent of the legal duty which the court below deemed rested upon the plaintiff must be ascertained from the following and only passage referring to the subject contained in its opinion, p. 406:

"The case is in some respects a very meritorious case. The injured plaintiff has stated the circumstances most fairly and honestly, and her testimony is worthy of all commendation. She was almost lured to her injury by the continued neglect of the District to remove the dangerous obstruction, which

[ 191 U.S. Page 255]

     was only one specimen of many such obstructions occurring to the common knowledge of all citizens in the streets and highways of this city, and which could be removed by reasonably careful inspection and at a greatly less cost than the amount of any one verdict against the District that has been recovered in any such case. Nevertheless, despite the fact that the negligence of the District has been great and is almost confessed on the record, we can find no difference in principle between this case and that of Brewer v. District of Columbia, upon the authority of which the court below proceeded. See, also, the case of Kelly v. Doody, 116 N. Y. 575.

"In pursuance of the decision in the Brewer case, and leaving the parties to their ultimate appeal to the Supreme Court of the United States, we must affirm, with costs, the judgment of the Supreme Court of the District of Columbia in the premises."

As the rule of law which the court deemed to be applicable was thus stated solely by reference to a prior case which the court had decided, that case must be examined to determine whether the extent of the duty which the court was of opinion rested upon the plaintiff in this case was correctly defined. District of Columbia v. Brewer -- the case referred to -- was decided in 1895. 7 App. D.C. 113. The case was this: The property owners on Brown street had constructed along a side of that street, where there was no paved sidewalk, a board walk. After the erection of this structure the District of Columbia graded the street, so that the bed of the street was lower than the board sidewalk by about ten inches. When this grading was done, at the request of the property owners the board walk was left undisturbed. One of the residents of the street made a driveway from his premises to the street, cutting out for such purpose a space through the board ...


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