I cannot agree with the prevailing opinion for the reason that an inequality in the sidewalk of not more than seven-eighths of an inch is so slight that no careful or prudent person would reasonably anticipate any danger from its existence. To say that negligence may reasonably be inferred from the existence of such an unevenness in the walk would impose an insuperable burden on every municipality. The city is not required to maintain its sidewalks in as smooth and even a condition as the ordinary parlor floor. Many rugs on parlor or drawing room floors have a depth of from a quarter to seven-eighths of an inch, thereby causing a ridge of that height against which one might stumble. There is some point at which reasonable care ends and negligence begins. With an unevenness no greater than that testified to in this case, I am of the opinion we are on the side of reasonable care.
I am not disposed to question the doctrine of the Shugren Case, 48 Utah 320, 159 P. 530, or that of Taylor v. OgdenCity, 61 Utah 455, 214 P. 311. In the Shugren Case the *Page 422 inequality was more than two inches in height and in the Taylor Case the evidence showed a hole in the walk of from two to six inches in depth. Those defects were of such dimensions that a jury might reasonably conclude that the city was guilty of negligence in allowing them to remain after notice or their existence for a sufficient time from which notice could be implied. The court in the Shugren Case said:
"Of course there may be defects so light and unimportant * * * that a court might well say as matter of law that the maintenance thereof did not constitute negligence on the part of the municipality."
And again, referring to other types of defects:
"We feel constrained to add that it must be obvious to all that not every raise or projection in a street or sidewalk can be held objectionable."
The rule as to when a court may withdraw a case of this type from the jury is well stated in City of Tulsa v. Frye,165 Okla. 302, 25 P.2d 1080, 1082, in quoting from the English case of Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 197, part of which is quoted in the opinion of Mr. Justice MOFFAT. I quote the whole paragraph:
"The judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether from these facts, when submitted to them, negligence ought to be inferred; and it is of the greatest importance in the administration of justice that these separate functions should be maintained, and maintained distinct. It would be a serious inroad on the province of the jury if, in a case where there are facts from which negligence may be reasonably inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever."
In the Frye Case the defect was about an inch in depth. The Supreme Court held the trial court should have directed *Page 423 a verdict for the defendant. The judgment for plaintiff was reversed and the cause remanded with directions to dismiss.
I fear the decision as written would mean that this court will sustain the judgment in every case where a jury brings in a verdict on evidence of any raise in a sidewalk, no matter how slight, and that it is a jury question whenever the plaintiff alleges he slipped or fell by stubbing his toe on a sidewalk where the protuberance is of any height against which a toe might be stubbed. Here the defect is so slight and unimportant that the court ought to say "as matter of law that the maintenance thereof did not constitute negligence on the part of the municipality."
The judgment should be reversed and the cause remanded for dismissal.