# Young v. Price

> Hawaii Supreme Court · December 9, 1963 · 47 Haw. 309

URL: https://www.frixlaw.com/law-library/cases/9545520

## Case

- **Full name:** Mary Ruth Young v. Louis P. Price and Allen L. Souza, Individually and Doing Business as Price Concrete Tank Company, an Hawaiian Copartnership
- **Court:** Hawaii Supreme Court
- **Decided:** December 9, 1963
- **Citations:** 47 Haw. 309; 388 P.2d 203; 1963 Haw. LEXIS 95
- **Precedential status:** Published
- **Opinion:** Dissent by Mizuha
- **Judges:** Tsukiyama, Cassidy, Wirtz, Lewis, Mizuha
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9545520

## How later opinions describe it (automated extraction)

- applying identical 1948 version of same

## Opinion text

DISSENTING OPINION BY
MIZUHA, J., WITH WHOM LEWIS, J., JOINS.
I cannot concur with the court’s opinion that the plaintiff was guilty of contributory negligence as a matter of law. It assumes that there was an obvious obstruction on a sidewalk just ahead in plain sight.
There was a definite conflict in the evidence. Plaintiff testified that she had not seen the hose, saw no warning sign, or sign of any kind, at or near the place where she fell. However, she did see the hose after she fell on the sidewalk. She had walked down this public sidewalk daily for 4 y2 years prior to the day of the accident. On this particular day, she slung a shoulder bag over her right shoulder containing a thermos bottle and her lunch. On her left arm she held her cash book or bookkeeping ledger, and “a little paper bag with fifteen dollars worth of silver *324 in it and fifteen dollars worth of bills.” She wore trifocals, and “the wind was blowing on my glasses and getting them wet.” There was testimony that it was raining, though not hard at the time. She carried an open umbrella in her right hand and “tilted the umbrella as protection against the wind.” She said that “by habit I always watch in front of me that I don’t bump into people and I don’t go with my nose to the ground.” She further stated that as she was walking along “if there was anything on the side of me, I didn’t see it.” She recalled a “green moss grass” strip and a fire hydrant between the street-curb line and the sidewalk and a green lawn to the right of the sidewalk. She had walked to just about the next house to her house, half-way down the block on the sidewalk when “my toe hit something and all of a sudden I’m just like that and down.”
The testimony of the defendants’ sole witness, Keliihoomalu, as to the position of the green hose, the position and color of the warning cones, and the position of the red warning flag was inconsistent, contradictory and ambiguous.
A person walking on a sidewalk has no duty to examine the street for defects or obstructions. He may act “* * * on the presumption the street is reasonably safe so long as he conducts himself as a reasonably prudent person would in like circumstances, * * Heberling v. City of Warrensburg, 204 Mo. 604, 617 , 103 S.W. 36, 40 . “* * * Of course, one cannot close his eyes and walk blindly and heedlessly into a place of danger. On the other hand, he is not bound to be on the lookout for hidden dangers. All that is required of him is that he walk with his eyes open, observing his general course, and in the usual manner.” Earl v. City of Cedar Rapids, 126 Iowa 361, 365 , 102 N.W. 140, 141 .
I have no quarrel with the rule that a pedestrian on *325 the sidewalk does not have to be “constantly on the alert for defects not plainly observable but neither may he go along paying no attention to where he is walking so that he would fail to see and avoid obvious obstructions. * * *” Sloan v. American Press, 327 Mo. 470, 484 , 37 S.W.2d 884, 890 .
The question which confronted the Missouri court in Sloan v. American Press, supra at 482 , 37 S.W.2d at 888-89 , was “what degree of vigilance, if any, a pedestrian must exercise in watching for obvious defects or obstructions when walking along a sidewalk with which he is unfamiliar.” It quoted from a separate concurring opinion in an earlier Missouri case, Ryan v. Kansas City, 232 Mo. 471 , 134 S.W. 566 , “ ‘While a footman 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 vital 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, * * *. He need not be watching at every footfall for defects, but he should act like [sic] 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 that no defects exist walk heedlessly into obvious ones.’ ” Sloan v. American Press, supra at 483 , 37 S.W.2d at 889 .
In reversing the judgment for plaintiff the court stated that “* * * The appellant was proceeding along the side *326 walk in broad daylight. The elevator opening, or at least the barriers 3j4 feet high, were plain to be seen. He was not frightened or acting in an emergency. He could have glanced forward from time to time observing his course, but he did not. He could have seen the obstruction a long way ahead. His excuse for not doing so is that he lit a cigarette, and thereafter kept his eyes on a man on the other side of the street he thought was Ralph Ray. * * *” Sloan v. American Press, supra at 487 , 37 S.W.2d at 891 .
Other cases cited in the court’s opinion are distinguishable or inapplicable to the facts in this case. Daniel v. Morency, 156 Me. 355, 361 , 165 A.2d 64, 67 , is in a jurisdiction where the plaintiff has “the burden of establishing by a preponderance of the evidence that her conduct was duly careful and did not contribute to her adversity.” In Sumner v. Griswold, 338 Ill. App. 190 , 86 N.E.2d 844 , plaintiff’s automobile ran into the rear of a wagon and team of horses. The standard of due care required of a plaintiff driving an automobile at night on a public highway is certainly different from that of a pedestrian on a public sidewalk during daylight hours. So, also, the standard of due care of a plaintiff crossing a street is a different matter, and Atkins v. Bouchet, 65 Cal. App. 94 , 223 Pac. 78 ; Dimuria v. Seattle Transfer Co., 50 Wash. 633 , 97 Pac. 657 ; Ogden v. Lee, 61 Cal. App. 493 , 215 Pac. 122 , and Ingle v. Maloney, 234 Ill. App. 151 , are distinguishable on that ground.
In Hedrick v. Akers, 244 N.C. 274, 276 , 93 S.E.2d 160, 162 , plaintiff testified as follows: “ ‘It was dirty around there and I didn’t know whether there was dirt on the sidewalk, or whether it was concrete, or dirt washed up, or what. * * * I thought the pipe stuck up above the concrete some places as much as five inches and gradually tapered off to less than five inches * * * the pipe which was sticking up above the concrete was about eight or 10 *327 feet in length.’ ” In view of this testimony, the court concluded that the plaintiff “did not see what she should have seen.” Plaintiff’s testimony in this case is not comparable.
Contributory negligence is a defense that must be proved by a preponderance of the evidence. The question of contributory negligence is for the jury when it arises upon a state of facts where reasonable men might draw different conclusions. Inasmuch as it was windy and raining at the time of the accident, and there was a conflict between the testimony of the plaintiff and the defendants’ witness as to the presence and position of the warning cones and the red flag, I am unable to arrive at the conclusion that as a matter of law, the plaintiff should have seen the green hose on the sidewalk. It was for the jury to determine:
1. The position and course of the green hose from the fire hydrant, along the green grass strip between the hydrant and sidewalk, across the sidewalk, and along the green grass lawn adjacent to the other side of the sidewalk;
2. The position of the warning cones and warning flag, if any;
3. Whether the plaintiff, as a reasonably prudent pedestrian on a public sidewalk, in the exercise of ordinary care under inclement weather conditions could and should have seen a green hose as it lay across the sidewalk in an area where there was a green grass strip between the street-curb line and the sidewalk and a green grass lawn adjacent to the other side of the sidewalk;
4. Whether the plaintiff as a reasonably prudent pedestrian on a public sidewalk in the exercise of ordinary care under inclement weather conditions could and should have seen the warning signs, if any, and *328 thereby have her attention directed to the green hose as it lay across the sidewalk.
The trial court did not err in submitting the question of contributory negligence to the jury.
Likewise, the trial court did not err in submitting the question of defendants’ negligence to the jury. It could not be said as a matter of law that the precautions taken by defendants were sufficient to relieve them of liability, particularly as the weather was inclement. Cf., East Coast Freight Lines v. Mayor and City Council of Baltimore, 190 Md. 256, 278-79 , 58 A.2d 290, 300-01 ; Sitas v. City of San Angelo, 177 S.W.2d 85 (Tex. Civ. App.); Walton v. Noel Co., 167 Kan. 274 , 205 P.2d 928 ; Sutphen v. Hedden, 67 N.J.L. 324 , 51 Atl. 721 .
While I cannot concur in the entry of judgment for defendants as in my opinion the court did not err in denying the motion for directed verdict, I would reverse and remand for a new trial because of other error.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9545520. Public record. Not legal advice.