Appeal from Third District.

negligent in maintaining in the residence portion of a city a sidewalk with one of the cement blocks raised from two to two and three-eighths inches, on the edge of which a pedestrian was tripped. (Page 323.)

3. MUNICIPAL CORPORATIONS-INJURY TO TRAVEL-LIABILITY. If improvements of streets or sidewalk are in the condition made in following plans adopted by the city, it is ordinarily not liable for injury there from to a traveler.1 (Page 328.)

4. MUNICIPAL CORPORATIONS-DEFECTIVE

SIDEWALKS EVIDENCE.

Evidence that other persons had previously stumbled, though they had not fallen, over the projection in a sidewalk, on which plaintiff had tripped, causing her to fall, is competent both as notice to the city, and as characterizing the defect. (Page 329.)

Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.

Action by Hannah Shugren against Salt Lake City.

Judgment for Plaintiff. Defendant appeals.

AFFIRMED.

H. J. Dininny, W. H. Folland, and Moses Davis, for appellant.

E. A. Walton, for respondent.

FRICK, J.

The plaintiff recovered judgment against the defendant for damages for personal injuries sustained in falling upon a sidewalk which, plaintiff alleged, was defective, as will here. inafter appear.

The evidence on behalf of plaintiff relative to the defective condition of the sidewalk, and her fall and injuries, in substance, is as follows: The plaintiff, a woman of middle age, on the evening of January 21, 1914, at about seven o'clock, while on her way home from the business portion of Salt Lake City, stumbled or tripped against a projection in a sidewalk and fell, sustaining somewhat severe, but not dangerous, in

'Ward v. Salt Lake City, 46 Utah 616, 151 Pac. 905.

Vol. 48-21

Shugren v. Salt Lake City, 48 Utah 320.

juries. The place where plaintiff fell is in the residence part of the city between Second and Third East streets and on Eighth South street. The sidewalk on which she fell is a concrete or cement walk about five feet in width and had been laid seven or eight years before the accident. When the walk was laid it was divided into square blocks or sections by cutting a groove with a trowel or some sharp instrument through the still plastic or wet cement, so that when the walk was completed for use it had the appearance of a series of large flagstones, one closely joined to the other. One of the cement blocks or squares for some reason, perhaps by the roots of a growing tree which stood a few feet from the defect, was lifted up out of its place at one end so that the end in question projected above the other block adjoining it to the extent of 23 inches on one side of the walk and about two inches on the other. The walk, according to the testimony, had been in that condition for several years, and the projection was perhaps getting a little higher. At the time plaintiff passed over the projection it was dark, but the electric lights on the street were lighted so that she could see the walk. She said she did not know whether she had passed over that portion of the walk before, but if she had, she did not know of the projection or defect. She was passing toward the face of the projecting block, and, in attempting to pass over it, the toe of her shoe hit against the projection, and she was tripped and fell prone on the sidewalk, where she was found lying in a semi-conscious condition by another woman, who helped her to her feet, after which she walked to her home, which was a few blocks away. There was evidence by another witness for the plaintiff that the projection was between two and three inches high, but the witness merely gave his judgment. The plaintiff and two other witnesses had, however, measured the height of the projection at different times, and they agreed on the height as above stated. The defendant's witnesses testified that they had made careful measurements with suitable instruments, and found the projection at its highest point to be 2 inches and at the lowest point 13 inches. The plaintiff also produced two witnesses who testified, over defendant's objections, that they had seen other persons, in passing along

Appeal from Third District.

the walk, stumble or trip over the projection before plaintiff fell, but that they had never seen any one fall down. The evidence respecting the extent of the injuries suffered by the plaintiff is not material here.

Defendant's counsel at the close of the evidence, moved the court to direct the jury to return a verdict for the defendant for the reason that under the undisputed evi- 1,2 dence the defendant, as matter of law, was not guilty of negligence in maintaining the walk in the condition described by the witnesses, and, further, that from the evidence it was made to appear that plaintiff did not exercise ordinary care for her own safety at the time, and that her want of ordinary care was the proximate cause of her injury. The court denied the motion and submitted the case to the jury upon the whole evidence. The jury returned a verdict in favor of the plaintiff for the sum of $750, and the defendant appeals.

The defendant assigns the ruling of the court in denying its motion for a directed verdict as error.

Counsel for defendant have referred us to a large number of cases in which, they contend, the courts have held that projections or defects in sidewalks like the one in question are not such defects as will make the municipality liable for injuries to a person who tripped and fell over them. We shall, as briefly as possible, give the gist of the decisions which are. cited by counsel in support of their contention.

In Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, it was held "a depression 2 inches deep, seven inches wide, and two feet six inches in length * in the center of

a flag sidewalk, eight feet wide" did not constitute negligence on the part of the city. (One justice dissenting.)

In Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N. E. 944, the court held that where "a traveler was injured by reason of a rounded depression in a flagged sidewalk about four inches deep, thirty-four inches long, and twelve inches wide, caused by heavily laden trucks wearing away the corners of the flagstones where they came together," did not constitute negligence on the part of the city. (Two justices dissenting.) To the same effect is Gastel v. City of New York, 194 N. Y. 15, 86 N. E. 833, 128 Am. St. Rep. 540, 16 Ann. Cas. 635.

Shugren v. Salt Lake City, 48 Utah 320.

In Terry v. Village of Perry, 199 N. Y. 79, 92 N. E. 91, L. R. A. (N. S.) 666, 20 Ann. Cas. 796, the court held:

35

"A municipal corporation is not liable for injury to a pedestrian, caused by his falling on a sidewalk because of a depression due to the settling of one edge of a concrete square in the walk one and one-half inches below the level of the adjoining square, although one or two persons had tripped on the unevenness before."

The other edge of the square was even with the adjoining block or square.

In Weisse v. City of Detroit, 105 Mich. 482, 63 N. W. 423, the court held:

"A crosswalk containing a loose plank, the end of which is raised about two inches above the level of the walk, is 'reasonably safe' ” within the requirements of the Michigan statute. (One justice dissenting.)

In Jackson v. Lansing, 121 Mich. 279, 80 N. W. 8, the court held "an irregular depression worn in a sidewalk about 11 to two feet in area, all sides of which, except on the south, where there was an abrupt depth of about 1 inches, sloped to a center from 1 to three inches in depth" did not show that the walk was not in a reasonably safe condition.

In Butler v. Village of Oxford, 186 N. Y. 444, 79 N. E. 712, the court held that where it was shown that "at the junction of a stone and dirt sidewalk in an incorporated village, the surface of the former walk was higher than that of the latter by about 2 inches in the center and by about five inches at the edge," the evidence was insufficient to show negligence on the part of the village.

In Yotter v. City of Detroit, 107 Mich. 4, 64 N. W. 743, the court, in effect, held that to lay two-inch planks on a board sidewalk to permit teams to cross over it so that the planks projected two inches above the surface of the walk did not make the walk unsafe.

In Kawiecka v. City of Superior, 136 Wis. 613, 118 N. W. 192, 21 L. R. A. (N. S.) 1020, the court held that where "the city rebuilt a portion of a sidewalk by nailing planks to the upper side of the walk, and permitting other parts of the walk to remain unchanged, so that there was an abrupt difference in level of two inches at the ends of the plank nailed

Appeal from Third District.

on the walk, over which plaintiff tripped and fell, and was the defect was too slight to justify a re

injured,

covery" under the Wisconsin statute.

In Davidson v. City of New York, 133 App. Div. 352, 117 N. Y. Supp. 185, the court held that where "a flagstone in a sidewalk six feet wide, which projected at the highest point 2 inches above the other stones, and gradually decreased in height until it was level with the other stones at the outside of the walk," did not constitute such a defect as would render the city liable to one who fell over the defect, and was injured. In Northrup v. City of Pontiac, 159 Mich. 250, 123 N. W. 1107, the court held:

"A grating projecting only two inches or less above a sidewalk is, as matter of law, not an obstruction which will render the sidewalk not reasonably safe for public travel."

In City of Chicago v. Norton, 116 Ill. App. 570, it was held that:

"The mere fact that one of two adjoining flagstones in a sidewalk is two and one-half to three inches lower than the other is not sufficient to charge a municipality with the result of injuries received by a person who fell while stepping from the higher to the lower."

In addition to the foregoing defendant's counsel have also cited Lalor v. New York City, 208 N. Y. 431, 102 N. E. 558; City of Richmond v. Schonberger, 111 Va. 168, 68 S. E. 284, 29 L. R. A. (N. S.) 180; City of Richmond v. Courtney, 32 Grat. (Va.) 792; Kleiner v. City of Madison, 104 Wis. 339, 80 N. W. 453; City of Dayton v. Glaser, 76 Ohio St. 471, 81 N. E. 991, 12 L. R. A. (N. S.) 916; Goodwyn v. City of Shreveport, 134 La. 820, 64 South. 762; Morgan v. City of Lewiston, 91 Me. 566, 40 Atl. 545; City of Lexington v. Cooper, 148 Ky. 17, 145 S. W. 1127, 43 L. R. A. (N. S.) 1158; McCoy v. City of Utica, 143 App. Div. 634, 128 N. Y. Supp. 60; Vanderborg v. City of New York, 158 App. Div. 297, 143 N. Y. Supp. 26; Schall v. City of New York, 88 App. Div. 64, 84 N. Y. Supp. 737.

While in all of the foregoing cases there are some features which, in some respects, resemble the case at bar, yet there are other features which readily distinguish those cases from the