Catherine Cain, brought this action against the city of Dayton for injuries sustained by her caused by a fall due to a defect in a sidewalk. She recovered a verdict of $12,500 in the Montgomery Common Pleas.
The lower court charged that there is no duty resting upon plaintiff to look for obstructions on sidewalks; that even though the obstruction existed prior to the accident and that plaintiff had not used the sidewalk for such length of time prior to the accident during which time the obstruction could have been remedied, she had the right to presume that the obstruction had been removed, regardless of her prior knowledge; and that if Cain were found to be free from negligence which was the proximate cause of, or did not contribute to the accident, by a preponderance of the evidence, the verdict was to be in her favor.
On error the Court of Appeals held:
1. These instructions were improper in view of certain facts testified to by the plaintiff in which she stated that she knew that the obstructions in question had existed for a period of years.
2. Under the testimony it became a question for the jury to determine whether the plaintiff exercised due care.
3. The above instructions were prejudicial error and necessarily resulted in a misconception by the jury of the true rule of contributory negligence.
4. A pedestrian upon streets of a city is required to exercise ordinary care to avoid accidents and upon failure to do so, such person would be precluded from recovery in an action against the city for damages.
Judgment of the lower court reversed.