#### Lydia A. Graham v. The Town of Oxford, Appellant.

1 Defective Sidewalk: juey question, it cannot be said- as a matter of law that a town is not liable for a defect in a sidewalk, consisting of a loose plank, because it contains a population of only five or six hundred people.

1 Same. ri he question whether a defect in asidewalk w as of a character sufficient to constitute negligence on the part of the town and whether the defect had existed for such a length of time before an accident occasioned thereby that the defendant should be charged with knowledge of it are questions' of fact and not of law.

1 4 Same. The jury was authorized to find that plaintiff was not negligent, where it appeared that, on reaching a point where one portion of the sidewalk was lower than the other, she stepped carefully on a board on the lower portion, which slipped, throwing her to the ground, and that such accident occurred on a dark evening, with no lights near the defect in question.

3 Contributory Negligence: A person who knows of a defect in a walk but that it can be passed in safety by the exercise of ordinary care and is justified as a reasonably prudent man in holding that belief, is not guilty of contributory negligence in attempting to pass over in an ordinarily careful and prudent manner.

3 Bulb Applied: An instruction that if the fall of plaintiff was caused by a loose plank on the sidewalk as claimed, then it would be necessary for' the jury to determine whether defendant was. negligent, and whether plaintiff was in the exercise of ordinary care, was not erroneous because of the admitted fact that plaintiff knew of such defect before the accident and could have avoided such danger by going another way.

*706ts *705Instructions: ordinary care defined: An instruction that there is. no absolute test in determining what is ordinary care but it may be considered to be that degree of care which an ordinarily reasonable man would exeicise under like circumstances, in view of. *706all the facts existing at the time, is not misleading because of the apparent conflict between its different parts, and such an instruction states the law with substantial accuracy. ■

*Appeal from Johnson District Court.*— -Hon. M. J. Wade, Judge.

Tuesday, May 24, 1898.

Action at law to recover for injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.—

*Affirmed.*

*Ewing & Maloney*and *Remley, Nye & Remley*for .appellant.

*Joe A. Edwards*and *Baker & Ball*for appellee.

Robinson, J.

In the evening of the first day of April, 1894, the plaintiff fell on a sidewalk of the ■defendant, and received the injuries for which she :seeks to recover. About ten days before the accident .occurred a new sidewalk was built in front of the ■premises of one Mrs. Scanlon. That walk was a continuation of an old walk in front of the premises of .one Windrem, and at the place where they were connected the new walk was a few inches higher than the old one, the difference in height being variously .estimated by witnesses at from two to. eight inches. The plaintiff claims that it was from four to six inches, and that at the time of the accident a two-inch plank about six inches wide and five feet long had •been placed across the end of the lower walk, next to ■the end of the other, in such a manner as to make a low step; that she was walking •along the Scanlon walk, and when she reached *707the place in question she stepped upon the board described, and it slipped and she was thereby thrown to the ground at the side of the walk, which was from two to three feet lower than the walk; and that her inj uries were caused in that manner. There is much evidence on the part of the defendant which tends strongly to show that the board described by the plaintiff was from ten to twelve inches in width, that it was securely nailed to the walk, and that its surface was but little lower than that of the Scanlon walk. Some of the evidence for the defendant also tended to show that the plaintiff did not fall at the j unction of the two walks but five or six feet from it. There was much conflict in the evidence respecting these matters, and the finding of the jury as to them, for either party, would not have been unsupported by the evidence.

1 I. The appellant argues that a town containing but five or six hundred people is not required to repair such a defect in its walks as that in question, and that the court erred in giving a portion of its charge which required the jury to determine whether the defect was of a character to constitute negligence on the part of the defendant, and whether it had existed for such a length of time that the defendant should be charged with knowledge of it before the accident occurred. Both of the questions thus submitted were of fact, and not of law, and the court did not err in requiring the jury to answer them. It was said in *Baxter v. City of Cedar Rapids,*103 Iowa, 599, that “whether an obstruction or other defect in a walk is of a character to make the municipality which permits it to exist responsible for it does not necessarily depend upon the size of the defect, but upon the effects which may reasonably be apprehended from it upon persons who use the walk in a proper manner. These, will vary with the circumstances of different cases, and *708whether the municipality is liable for a defect in its streets or walks will, as a rule, be a question of fact,, to be determined by the jury under the instructions of the court, and not a mere question of law, to be determined by the court alone.” See, also, *Ledgerwood v. City of Webster City,*93 Iowa, 726; *Patterson v. City of Council Bluffs,*91 Iowa, 732. It cannot be said, as a matter of law, that the defendant, because of its small population, is not liable for the defects in question.

2 II. The eighth paragraph of the charge to the jury is as follows : “ In determining what is ordinary care, there is no absolute test, but it may be considered to be that degree of care which an ordinarily reasonable man would exercise under like circumstances, in view of all the facts existing at the time.” The appellant complains of this on the ground that the first part of it states that there is no absolute test of ordinary .care, and that the last part gives an absolute rule for determining what it is. We think the conflict, if any, between the different parts of the paragraph- is more apparent than real. Taken as a whole, it means that there is no fixed rule for determining what is ordinary care, applicable to all cases, but that each case must be determined according to its own facts, and the general rule to that effect is stated. The j ury could not have misunderstood the meaning of the paragraph, and it stated the law with substantial accuracy.

3 III. The court charged the jury that if the fall of the plaintiff was caused by a loose plank, as claimed, then it would be necessary for the jury to determine whether the defendant was negligent in having the plank in that position, and whether at the time the plaintiff fell she was in the exercise of ordinary care. The appellant insists that this was erroneous, because the plaintiff admits that she knew of the defect before the time of the accident. *709and the evidence shows that she could have avoided danger from it by going another way. But it is not true that one who knows of a defect in a walk is necessarily guilty of negligence if he attempt to pass over it. Much depends upon the character of the defect, the occasion for passing over it, and the care used in doing so. If a person knows of a defect in a walk, but believes that it can be passed in safety by the exercise of ordinary care, and he is j ustified as a reasonably prudent man in holding that belief, he is not negligent in attempting to pass over it in an ordinarily careful and prudent manner. *Nichols v. Town of*Laurens, 96 Iowa, 388; *Barnes v. Town of Marcus,*96 Iowa, 675. We think the paragraph of the charge in ■question is not vulnerable to the objection made. Other portions of the charge are criticised, but we find them to be substantially correct.

4 IV. The accident occurred at about nine o’clock in a dark evening. There were no lights near the defect in question and the walk was frosty. The plaintiff states that when she reached the defect she stepped down upon the board on the lower part of the walk ; that the board slipped, and she was thrown to the ground ; and that in stepping down she stepped slowly and carefully. We are of the opinion that the jury was authorized to find, from all the facts disclosed by the record, that the plaintiff was not negligent. There is ample evidence to show that the defendant should be charged with notice of the defect in time to have prevented the accident. We do not find any error in the rulings of the district court, nor cause for disturbing its judgment, which is therefore affirmed.