. osnomm v. cms? or nmrtorr. 43
accident had occurred to Bateson,rwh0 made use of this walk three or
four times a day for months before, and to whom its condition was no-
toriously defective, so much so that he and his wife were accustomed to
walk there in single file, we- should have felt authorized to withdraw the
case from the jury upon that ground; but the plaintiff here was not ac-
quainted with the walk, was carrying a large market basket on her arm
at the time, and had never had her attention directed to its condition.
" It also appears to us very doubtful whether, admitting her guilt of
negligence, such negligence could in any just sense be said to have
proximately contributed to the accident. She had passed over the most
dangerous portion of the walk, and was tripped up, not by stepping
upon a rotten plank herself, but by the act of Bateson in stepping upon
one end, and thus causing the other end to spring up directly in front ~
of the plaintiff'. This was not her fault. Even if she knew the sidewalk
was unsafe, this would not, in an ordinary case, be conclusive evidence
of contributory negligence. Whart. Neg. §§ 402, 403; Lyman v. Hamp- t
shire, 140 Mass. 311, 3 N. E. Rep. 211; Gilbert v. Boston, 139 Mass. 313-;
Whittaker v.. West Boylston, 97 Mass. 273; Looney v. McLean, 129 Mass.
33; Weed v. Ballstoa Spa, 76 N. Y. 329; Dewire v. Bailey, 131 Mass. 169;
Lowell v. Watertown, 58 Mich. 568, 25 N. W. Rep. 517.
There is also a recent English case, the name of which has escaped
me, in which it was held that a passenger upon a sidewalk was not ordi-
narily bound to look at the walk, but was entitled to presume that it
was in good condition and repair. ·
8. That the court called the attention of the jury to the fact that the
accident occurred in front of the police station, and within sight of the
officers whose duty it was to have charge of the station. This instruc-
tion was justified by the testimony of the witness Moore, (himselfa po-
liceman,) who swore that it was a part of his duty as policemanto take
notice of these defects, and report them to the board of public works or
to another agent, whose duty it was to see the sidewalks were in a proper
condition. »This testimony was not only uncontradicted, but was not
objected to, and we think is sufficient upon this point. While neither
the city charter nor ordinances may have imposed this duty upon the
police, if, in administration of the city government, it was the practice
of the police to notify the board of public works of the existence of these
defects, the court might properly call the attention of the jury to it. If
there was any portion of the sidewalk which it was the peculiar duty of
the city to keep in repair, it was in front of their own property, and
within sight of the officers who made it a part of their daily duties to
report these defects. ' i
9. There was no error in submitting the question to the jury whether
the plaintiff had been guilty of contributory negligence in failing to send
for a physician sooner, nor in the illustration which was put to the jury
as pertinent to this question. The plaintiff was a mature, but not an
old, woman; had always enjoyed excellent health, and the pain she suffered
when she first returned home was not such as to excite any alarm. Had
she been a physician herself, or a person of greater age or experience in