Jack Choisser, City Atty., Howard W. Gibbons, Asst. City Atty., Phoenix, for appellant.
Leon S. Jacobs, of Phoenix, for appellees.
Udall, Justice. Stanford, Phelps and De Concino, JJ., concur. La Prade, Chief Justice (dissenting).
[71 Ariz. 261] Plaintiffs-appellees Robert L. Weedon and Frances B. Weedon, husband and wife, obtained a judgment against the city of Phoenix, defendant-appellant, for injuries sustained by Mrs. Weedon in a fall caused by stumbling on a raised section of a public sidewalk within the city limits. The city has appealed from this judgment.
The facts, stated in the light most favorable to sustaining the judgment, are as follows: About 8:45 a.m. on June 8, 1948, Mrs. Weedon, aged 62, was unhurriedly walking from the lot where she customarily parked her car to her place of employment on North Second Avenue in the city of Phoenix. Plaintiff was proceeding in an easterly direction on the north side of Adams Street. When she reached a point directly in front of 324 West Adams (Ray Korte Automobile Agency), she had just passed a second person (later identified as Mrs. Cecilia Ann Doyle) walking in the same direction. She then moved over to her right hand edge of the walk to allow another person coming from the opposite direction to pass on her left. Plaintiff, who is a large woman, upon moving to her right, and while six or eight inches from the outer edge of the walk, stubbed her toe on a sharp rise in the pavement at the expansion joint, causing her to fall heavily and sustain serious fractures of both arms, as well as other minor sprains and bruises.
Plaintiff when testifying estimated the rise in the sidewalk to be from one and a half to two inches; Mrs. Doyle thought it was two inches; however, an engineer, testifying for the city, stated that he had measured the rise and that it was seven-eighths of an inch at its highest point and tapered down to nothing toward the inside of the walk. According to the testimony the sidewalk was five to six feet in width at that point.
There was no conflict in the evidence concerning the fact that Mrs. Weedon knew of this defect in the sidewalk and deemed it dangerous. She had known of its condition for approximately eight months, having used this walk almost daily in going to and returning from her place of employment in the license department of the county assessor's office. Mrs. Doyle testified that she had observed the same defective and dangerous condition continuously for more than two years preceding the accident, and that she had avoided this unsafe spot after having almost stumbled over it herself.
[71 Ariz. 262] The complaint alleged that the city had failed and neglected to keep this sidewalk in good repair or in reasonably safe condition for pedestrians to travel thereon at the place of the accident; that defendant well knew or in the exercise of ordinary care should have known of said dangerous, defective and unsafe condition.
The city pleaded as defenses: (a) denial of plaintiff's allegations, (b) an affirmative allegation that, if the defect existed, it was a minor and inconsequential defect and defendant had no knowledge of its existence, and (c) contributory negligence on the part of plaintiff. The case, under proper instructions from the court, was submitted to a jury which returned a verdict in favor of plaintiffs for the sum of $ 2315. After entry of judgment thereon and a denial of defendant's motion for a new trial, this appeal was taken. It is not contended that the judgment was excessive.
Although the questions of plaintiff's contributory negligence and the city's lack of knowledge or notice of the defective condition in the sidewalk are raised on this appeal, the principal contention relied upon is that the condition of the walk, according to plaintiff's evidence most favorably construed, showed such a slight and inconsequential defect that the trial court should have held as a matter of law that the walk was reasonably safe, and defendant's motion for an instructed verdict should have been granted.
Defendant first contends, in substance, that plaintiff was guilty of contributory negligence. This defense was raised in the court below, submitted to the jury as a question of fact, Const. of Arizona, Art. 18, Sec. 5; Davis v. Boggs, 22 Ariz. 497, 199 P. 116, and determined adversely to defendant by the jury. If the judgment is supported by competent evidence it must be upheld. Atchison, T. & S. F. Ry. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167. Plaintiff candidly testified that she knew of the defect in the sidewalk, that she used the walk daily in going to and returning from her work, and that she had known of the defect for approximately eight months. She also testified that at the time of the accident:
"* * * I think my mind must have been distracted by passing these two ladies, therefore, I forgot it for a second or two * * *."
"I was passing two persons practically at the same time and my attention was diverted and I overlooked that * * *."
"I don't remember of noticing it that morning at all, because my mind was distracted by passing both of those women fairly close together."
The jury determined, upon the question being submitted to it, that this did not constitute negligent conduct on the part of plaintiff. Their determination of this fact is conclusive. City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296; 19 [71 Ariz. 263] McQuillin's Municipal Corporations (3rd ed.), Sec. 54.125, p. 472; 40 C.J.S., Highways, §§ 268 and 270.
As Chief Justice Ross pointed out in the leading and well-reasoned case of Dillow v. City of Yuma,55 Ariz. 6, 97 P.2d 535, there is a wide disagreement between the courts as to when a defect may or may not be declared harmless as a matter of law. In an annotation appearing in 119 A.L.R. 161 the editorial staff has collated representative and divergent cases on the subject. As would be expected the cases relied upon by the city for a reversal in the instant case are to be found under the "insufficient basis" list. For text statements on the province of court and jury see: 63 C.J.S., Municipal Corporations, § 942; 40 ...