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by a jury under proper instructions of the court appropriate to the issues and the evidence. If the jury shall err, the trial judge may thereafter correct the error, and if he fail to correct it, the higher courts are still available.

We come now to examine the question as to whether or not there was some evidence touching or tending to prove each and every material fact necessary to entitle the plaintiff to recover.

The three grounds upon which the trial judge directed the verdict were as follows: First, that the plaintiff by her own testimony has raised a presumption of contributory negligence on her part; second, that the testimony in this case fails to show any express or implied notice to this defendant of the condition of the sidewalk; third, that the defect in the sidewalk as shown by the testimony is as a matter of law not such a defect that plaintiff can recover, and that the court is authorized as a matter of law to say that the village was not negligent in permitting such a defect in the street.

A mere statement of these three questions of fact, the determination of which was squarely and directly taken away from the jury, shows the length to which trial courts may go under the guise of law in defeating the right of trial by jury. Ordinarily, the question of negligence, if not one of fact, is of mixed law and fact, and is a proper issue for the determination of the jury. If negligence raises a proper issue for the determination of the jury, certainly contributory negligence must likewise raise a proper issue for the determination of the jury. It will not do to say that the

Opinion of the Court.

negligence of the defendant was a question for the jury, but that the negligence of the plaintiff with respect to the same transaction, whether you call it contributory or not, was a question for the court. They both involve the question of want of ordinary care in the particular situation and both must be determined by substantially the same rules of evidence.

In this particular case, however, the plaintiff is walking along in the usual and ordinary way on a perfectly flat, smooth, flagstone sidewalk, when she comes to this point where there is a sudden and immediate two-inch drop. At this point, she testifies: "And I stepped on the walk it seems to me it was higher where my heel was and my toe went down low and when I stepped up my toe went in this place and it threw me this way and I struck on this hip and wrenched this ankle and limb."

This was about 8:30 in the evening, in the month of August, 1909. The plaintiff was a comparative stranger to the town, and an entire stranger to this walk. The night was sufficiently dark and the arc light far enough removed so that the defect in the sidewalk was not discernible at the time to the plaintiff. Walking along in her usual way under these circumstances she fell and was injured by reason of the condition of this walk. How then can it be said as a matter of law that she was guilty of contributory negligence?

As to the second proposition, that there was no notice express or implied to the defendant of the condition of the sidewalk, the evidence showed

Opinion of the Court.

that the sidewalk had been practically in this condition for more than two years; that three or four other accidents, not so serious, however, but accidents, had occurred at this particular place. Can it be consistently said that these facts furnish no evidence whatsoever as to constructive notice or implied notice to the defendant as to the condition of this walk? The statement of the question suggests its own proper answer.

Third, that the defect in the sidewalk, as shown by the testimony, is, as a matter of law, not such a defect that the plaintiff can recover. If the court may say, as a matter of law, that a twoinch defect is not a defect, it may say that a fourinch defect, or a six or ten-inch defect, is not a defect upon which to predicate an action for negligence. For the purpose of this motion, the defect must be admitted, and it was a question for the jury to say whether or not the continuation of that defect for two years or more, under all the circumstances of the case, was or was not want of ordinary care upon the part of the village to keep its streets in a reasonably safe condition, and whether or not the village knew or ought to have known of that fact. The very fact that the defect was undisputed was some evidence tending to show negligence, which, together with all the other facts and circumstances in the case, certainly furnishes an issue for the determination of the jury.

True, many cases can be cited from other states holding the contrary doctrine. In some the court has directed a verdict where there was a defect or

Opinion of the Court.

depression in streets or sidewalks of two inches, three inches, four inches, five inches, six inches, and even more, holding, in such cases, that the defect was a matter of law, assuming, indeed, to make an exception in cases of negligence against municipalities and applying a different rule than is applied in negligence cases against private corporations. Obviously, this is not a mathematical question to be decided upon some mathematical or lineal standard; but, on the contrary, it is an ethical question. There is no reason why an exception should be made in favor of municipal corporations, the citizens and taxpayers of which are usually well represented on the jury and always keen and anxious to protect the rights of their own municipality.

Special attention has been invited to the case of City of Dayton v. Glaser, 76 Ohio St., 471, as sustaining the doctrine in support of the judgments below. We approve the rule laid down in the syllabus, which is not at variance with any doctrine announced here; but, so far as the written opinion approves the doctrine laid down in Beltz v. City of Yonkers, 148 N. Y., 67; Grant v. Town of Enfield, 11 N. Y. App. Div., 358; and Morgan v. City of Lewiston, 91 Me., 566, the same is disapproved.

So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions.

Syllabus.

The judgments below are reversed and the cause is remanded to the court of common pleas for a new trial and such other proceedings as are required by law.

Reversed.

JOHNSON, DONAHUE, NEWMAN and WILKIN, JJ., concur.

EDMONDSON, Auditor, et al. V. DECKEBACH.

Contract by county with person-To search for concealed and unassessed taxable realty-Omitted from tax duplicate-Employed searcher to receive percentage of taxes recoveredSearcher not entitled to compensation for taxes collectedIn and for time subsequent to expiration of contract, when -Services rendered after life of contract gratuitous, when— Tax inquisitor-Law of contracts.

1. A contract made by a county through its proper officers, employing a person to search for and discover concealed and unassessed taxable real estate that had been omitted from the assessment rolls and tax duplicate of that county, upon which property the taxes "are lawfully due and unpaid," which contract provides that the person so employed is to receive for his services a certain percentage of the taxes actually recovered by the county treasurer from assessments on such omitted real estate and further provides that the compensation agreed upon "shall not be deemed due and owing until the taxes upon such omitted real estate have actually been paid into the county treasury,” does not authorize the payment of any compensation to such person so employed out of taxes levied and collected on this real estate at and for a time subsequent to the expiration of the term of the contract.

2. Such contract, by its express terms, relates to and comprehends only the taxes that then are lawfully due and unpaid upon such omitted real estate, and these taxes not only measure the amount of compensation to be paid him under this contract, but also provide the only fund out of which he can be paid for such services.