The difficulty of laying down some common-sense rule which will not impose upon cities virtually impossible financial and administration burdens, and at the same time make sidewalks reasonably safe for the public, is illustrated by the division in the cases and the shifting from one rule to another by certain of the states. The situation here presents a border-line case. It must be kept in mind that this case presents only the situation of an abrupt raise between the flagstones and not the situation where a rounded depression exists or any case of accumulation of ice or any hiatus in the flagstones or loose bricks or flagstones or holes, pitfalls or traps, or protuberances such as curb boxes or part of a water or gas system, or many of the other types of irregularities, *Page 419 unevennesses, projections, obstacles, or protuberances which are involved in various sidewalk csaes.
I think the rule laid down in the case of Shugren v. SaltLake City, 48 Utah 320, 159 P. 530, should be the overarching one. That is, I think it should generally be left to the jury to say whether the city was in fact negligent, but subject to the courts to determine in certain cases whether in law a case of negligence has been made out. And I think that should work both ways. If the difference in elevation of contiguous parts of a pavement was so great that no reasonable mind could say it was not dangerous and the condition existed such length of time that the city should have taken notice of it, the case should go to the jury with instructions to determine whether the condition actually had caused injury and the extent of the damages, subject to the instruction as to whether the pedestrian used the care required by the circumstances. On the other hand, if the raise is so slight that reasonable minds could not differ in a conclusion that it was one of the almost inevitable irregularities which must be expected and endured if we have sidewalks at all, I think the case should be withheld from the jury.
Shoes on feet in motion are designed to slip over small protuberances in the forward motion of the foot unless the toe end of the shoe should strike that protuberance at a certain point in that stroke of the foot. And in the light ordinarily the eye and foot co-ordinate unconsciously to avoid that. But even the slightest of raises in the flagstones or sections of a sidewalk may here and there cause a stubbing. Certainly, not every such result is actionable.
The difficulty is to fix precise bounds between raises, the maintenance of which in law constitutes negligence, and those which in law cannot so constitute negligence. I am unwilling at this time to set those limits. I think they must depend on locality, amount of use and travel, etc. I agree with the prevailing opinion that seven-eighths of an inch (we must take the evidence most favorable to plaintiff in *Page 420 testing out the point whether minds could reasonably differ as to whether the condition constituted negligence) is an irregularity sufficiently great under the circumstances of this case to let the jury determine negligence. The evidence being that the plaintiff was on the inside of three walking abreast, there is sufficient evidence that she encountered this seven-eighths inch raise and not the receding raises as the curb was approached.
This is perhaps one of those rare cases where we should welcome from time to time a re-examination of the principle which we have applied hereto. If experience should reveal that we have by this rule cast a burden on the city beyond which it ought to assume, we may in the future have to set some arbitrary figure under which it can be said in law that there was not negligence. But, as at present advised, I think we should not at this time make such a rule. There are usually more factors than the amount of the raise that enter into the situation. There is the matter of the comparative amount of travel, the matter of whether it is a business or residence neighborhood, the matter of whether sparsely or solidly built up. The jury could on inspection note the latter. I am inclined to agree with the language used rather recently by the Pennsylvania court in Kuntz v. City ofPittsburg, 123 Pa. Super. 394, 187 A. 287, 289, reading:
"The decisions [of Pennsylvania] establish that an irregularity may be so slight that the court is required as a matter of law to say that such unevenness is not evidence of lack of reasonable care, but there is a shadow zone where such question must be submitted to a jury whose duty it is to take into account all the circumstances. To hold otherwise would result in the court ultimately fixing the dividing line to the fraction of an inch, a result which is absurd. The true principle was tersely stated by Judge Trexler in the case of Shafer v.Philadelphia, 60 Pa. Super. 256, as follows: `What particular shallowness of depression in a sidewalk or street forms such a slight inequality in the surface, as to excuse its presence and release the city of liability therefor cannot be definitely stated. Each case must necessarily be determined by the surrounding circumstances and generally the matter must be left to the jury.'" *Page 421
I cannot agree with the prevailing opinion that the requested instruction sought to infer that plaintiff had not ordinary health, strength or control or that it was meant or intended to have any reference to specific evidence in this case. The qualification that it must be so out of repair as to endanger persons "in ordinary health and of ordinary strength and with ordinary control of their muscles and faculties while passing thereon," is a part of the test of the city's negligence or lack of it. Certainly, a pavement would not have to be made so safe that every aged, decrepit, idiotic, or crippled person or person with locomotor ataxia or intoxicated could pass without danger of stumbling. This language was part of the test. But I think failure to give the instruction in the light of other instructions given was not prejudicial error. I concur in the results.