113 Ky. 608 | Ky. Ct. App. | 1902
Optnton op tur court p.y
Reversing.
The appellee, Emma Asman, brought this suit to recover damages for personal injuries received by her on the 4th of September, 1901, resulting from an alleged defective condition in one of the sidewalks of the eitv of Covington. It appears from the testimony that the brick pavement in front of the Sisters’ School had been replaced by one made of cement, Avhicli Avas about three inches higher than the brick pavement, and at the point where the cement pavement stopped, and the brick began, a small gutter ran from the side yard across the pavement along the edge of the cement pavement to the guiter in the street, and that near the curbing one or two bricks were missing and two or three were loose, and that appellee stepped into the hole from which the missing brick had been taken, Avhich resulted in a severe sprain of her ankle. A jury trial resulted in a A-erdict and judgment in her favor for $523, and, a motion for a new trial having been overruled, the city prosecutes this appeal. The main ground relied on for reversal is that the trial court erred in instruction No. 1 given to the jury.
The question whether reasonable and ordinary care has been used by the city is ordinarily for a jury. In instruction No. 1 given to the jury in this case, they were told that if a hole4 or depression existed in the sidewalk, with loose bricks lying about, and appellee’s injuries were received in consequence of such depression, they should find in her favor, if they believed from the evidence that the defendant knew, or by the exercise of ordinary care could
For reasons indicated, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.