Volume 52 — Washington Reports, Second Series

[1] MUNICIPAL CORPORATIONS — TORTS — OBSTRUCTION ON SIDEWALKS — CONSTRUCTIVE NOTICE — FACTORS CONSIDERED. What constitutes a sufficient period of time to place a municipality on constructive notice of a defect in a sidewalk is determinable largely from the circumstances of each case. [2] SAME — PERIOD OF TIME CONSTITUTING. If a defective condition or danger which caused an injury existed for such a period of time that the municipal authorities, by the exercise of ordinary care and diligence, must have known of its existence, and could have guarded the public against it and failed to do so, notice will be imputed to the municipality. [3] SAME — TORTS — ACTIONS — EVIDENCE — SUFFICIENCY — NOTICE OF DEFECT. In an action against a company, which controlled, operated, and managed a city, for personal injuries received when the plaintiff fell over a vehicle stop signpost which had been bent across a sidewalk, there was sufficient evidence to charge the defendant with constructive notice of the obstruction, and it was not error to submit this issue to the jury, where it was established that the street was one of the busiest in the city of twenty-seven thousand and that the obstruction existed from nine a.m. until four p.m. [4] SAME — CONTRIBUTORY NEGLIGENCE — DUTY OF PEDESTRIAN. A pedestrian, who has no knowledge to the contrary, has the right to assume that the street upon which he is walking is free from dangerous defects, and he is not required to confine his attention constantly to the street ahead of him.<page_number>Page 788</page_number> [5] SAME — DUTY TO LOOK. The fact that there is something in a pedestrian's path which he could see if he looked and which he does not see because he does not look, does not constitute contributory negligence as a matter of law, unless there is a duty to look for that particular thing. [6] NEGLIGENCE — ACTIONS — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE. Ordinarily, the question of contributory negligence is for the jury, and a court will determine the question only when but one reasonable conclusion can be reached. [7] SAME — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF. The burden of establishing the affirmative defense of contributory negligence is upon the party who asserts it. [8] MUNICIPAL CORPORATIONS — TORTS — ACTIONS — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE OF PEDESTRIAN. In such an action, the question of the contributory negligence of the plaintiff was properly submitted to the jury, where it appeared that while the plaintiff had an opportunity to observe the obstruction as he approached it for a distance of two hundred feet, the pipe which supported the sign was of a color similar to that of the sidewalk, and the sign was bent face down over the sidewalk making it difficult for an approaching pedestrian to see. [2] See 38 Am. Jur. 1032.