199 Ky. 311 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
Della Peterson was awarded $2,000.00 in damages against tbe City of Bowling Green for a personal injury suffered by ber as tlie result of a falling pole, which stood upon the streets of the city, striking her as she walked along the pavement of Twelfth street. She charged and proved to the satisfaction, of the jury that
The city denied its liability and insisted that the pole was caused to fall by a wagon coming in contact with it and but for such interference the pole would not have fallen and appellee would- not have been injured. The evidence shows that the appellee with her little sister was on the way to church about ten o’clock in the morning; that they were walking along the pavement and -that the pole, wholly unexpected to her, fell and struck her on the face and head, knocking her unconscious and injuring her severely. It is further shown that some men with a wagon loaded with green fodder piled on crosswise were passing the street next to -the pole while some cattle ran in front; that the ends of the green fodder swiped against the pole which broke and fell. The pole stood on the edge of the traveled part -of the street next to the sidewalk and was at a place at which reasonably prudent persons might have anticipated it would come in contact with persons driving and passing along that side of the street. -If, as contended by appellee, the pole was so decayed on the outside as to show that it was in a weakened condition and this decayed condition had existed for such time as to have afforded the city, by the exercise of ordinary care, reasonable opportunity of knowing of the dangerous condition of the pole and the city failed to take it down or to protect the public from the dangers of its falling, the city was liable to the young lady in damages for
Tbe instructions are erroneous in tbat tbe court failed to define “ordinary care” and “negligence,” after tbe appellant bad requested such instructions. Instructions Nos. 1 and 2 substantially presented the law of tbe case, but tbe court should have given an instruction defining “ordinary care” and “negligence,” especially when requested to do so. We have so held in various cases, including Covington Saw Mill & Mfg. Co. v. Drexilius, 120 Ky. 493. See also 14 R. C. L. 762.
This.was tbe duty of tbe court when tbe defendant city offered an instruction upon tbat subject. No doubt tbe failure to give tbe instruction was mere oversight on tbe part of tbe trial judge. However this may be, the city was entitled to have such an instruction given to the jury. For tbe failure of tbe court to give this instruction the judgment must be reversed for proceedings not inconsistent herewith.
Judgment reversed.