SEPARATE CONCURRINC OPINION.
LAMM, J.In voting to affirm, I concur with the result, but not to all my learned brother Craves says, arguendo. I put concurrence on the following grounds;
Plaintiff asked no instruction covering her right to act upon the presumption that the sidewalk was reasonably safe. There is a presumption of that kind that may go to the jury. But, if plaintiff desired such instruction, her counsel should have asked it. Non-direction in a civil ease is not misdirection. While a *487footman may presume a city has done its duty in keeping its sidewalks in a reasonably safe condition for travel by pedestrians, by night as well as by day, yet' that presumption runs with a condition. It goes hand in hand with another vita} proposition, viz., that a footman must use ordinary, that is, due care to avoid injuring himself. Such care is the care of an ordinary person under like circumstances. Such care is broad enough to create the duty to look and see where one is going as well as the duty to avoid danger when actually discovered. That does not mean a pedestrian is an inspector of sidewalks or cannot take a step without looking down to see that his feet do not carry him into a pit, nor does it mean that an ordinarily prudent person might not be deceived into taking an excavation full of water as part of the sidewalk at night in the glimmer of electric lights or 'during a storm. He need not be watching at every footfall for defects, but he should act like a prudent person, who makes reasonable use of his eyes while walking. He cannot shut his eyes, or blindfold himself, or walk backward, or not look about him at all, or, under the assumption no defects exist, walk heedlessly into obvious ones.
Defendant’s instructions announce good doctrine in that respect. Due care allows a reasonable person to act on the presumption of safety so long as (and no longer than) he uses due care to avoid his own injury. To rule that a plaintiff could be cast only when he actually knows of the defect, and thereafter acts negligently, is a dangerous doctrine I cannot subscribe to. He must use due care to discover in order to avoid. The jury take the presumption along with the proposition of due care in making up their estimate of .liability, when plaintiff sees to it they get the presumption along with defendant’s instruction on due care.
As the Heberling case is questioned, I may as well say that 1 think that case goes too far in some of its general language. But the case was soundly ruled, *488considering the facts. Plaintiff was driving, not walking. The real defect was concealed. The mere presence of the surface water and mud threw no duty on plaintiff to avoid the place in a muddy time. The defect was caused by the depth of the hole or rut and sprung from the negligence of the town. The depth was concealed by the surface mud and water. Taking the facts of that particular case and construing the law discussed with the facts, as we must, the result reached was well enough. No reasonable care would have avoided the concealed and hidden danger in the Heberling case.