Edward Douglass White

“ Two elements of fact are involved in determining whether the alleged contributory neglect of the plaintiff was a question for the jury or for the court. The first is, what were the undisputed facts? and the second, whether such facts necessarily engender the ultimate inference of fact as to contributory neglect. The elementary law is that issues of fact are to be decided by the jury. But where the probative facts are undisputed, and where all reasonable minds can draw but one inference from them, the question to be determined is one of law for the court. ”

“ District of Columbia, 5 Mackey, 287, said:
'The law on the subject throws on the defendant, in an action of this kind, the onus of proving contributory negligence; and that proof is not made out by merely showing the knowledge by the complainant of the defect complained of in the highway. If the highway is wholly impassable and in such condition that no reasonable man would attempt to pass it, the plaintiff does it at his own risk. But if it is not,-and especially if it is the only access to his dwelling,-the only duty on his part is the exercise of proper care to avoid accidents ”

“ It is a question of fact for the jury whether, in passing over a walk known to be dangerous, instead of taking some other route, the plaintiff is or is not in the exercise of ordinary care. Sandwich v. Dolan, 133 Ill. 177, 24 N. E. 526.'
In Graham v. Oxford, 105 Iowa, 709, 75 N. W. 473, the court said:
'It is not true that one who knows of a defect in a walk is necessarily guilty of negligence if he attempt to pass over it. Much depends upon the character of the defect, the occasion for passing over it, and the care used in doing so. ”