170 Ky. 281 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
This is a personal injury case, in which 'plaintiff, Edna Dahl, recovered of the defendant, City of Louisville, a verdict and judgment for $2,000.00. The city appeals.
According to the evidence for plaintiff, the concrete pavement on Melwood avenue was broken in such a way as to form a shell or crust. While walking .along the street for the purpose of catching a car, her foot caught in the concrete and she was thrown to the ground. The accident happened about 8:15 p. m., June 19th, 1913, and it was then dark. Plaintiff weighed about 180 pounds and her fall was a severe one. Her left side and left limb were badly bruised and the radius of her left arm was fractured. Doctor Hartman, who examined the sidewalk shortly after the accident, says that he lighted a match and found that a piece in the sidewalk had been broken, and that this piece extended up to about the height of three inches. Though he did not measure, but only estimated the distance, he was sure that it- was not less than three inches but was probably between three and three and one-half inches. He also said that the. projecting portion overlapped the other part and was easy to stumble over. Other witnesses testify to the same condition. For the defendant several witnesses, who actually measured the elevation of the concrete at the place of the injury, testified that the elevation was from one-half to three-quarters of an inch. On the other hand, two or three witnesses for plaintiff testify that after the accident the projecting concrete bore evidences of having been pressed down.
The city contends that the trial court erred in refusing to sustain its motion for a peremptory instruction. This contention is based on the proposition that the witnesses for plaintiff merely estimated .the height
“I further instruct you, gentlemen, that it was the duty of the plaintiff, Mrs. Edna Dahl, to exercise ordinary care for her own safety in using the sidewalk, and if you believe from the evidence in this case that she failed to exercise such care and her negligence, if any, so contributed to bring about her fall and injury, if she did fall and was injured, that but for her negligence she would not have been injured, the law of the case is for the defendant and you should so find, although you may believe from the evidence that the sidewalk was negligently permitted to be in an unsafe condition as submitted to you in the first instruction.”
This instruction is assailed on the ground that the court should have used the words “her failure, if any,” instead of the words “her negligence, if any,” and lower down in the instruction • should have used the words “her failure to exercise such care” instead of the words “her negligence.” In view of the fact that negligence is a mere failure to exercise ordinary care and was so defined in other instructions given by the court, it is manifest that the use of the word “negligence” in the first instance in place of the word “failure,” and the use of the word “negligence” in the second instance in-lieu of the. words “her failure to exercise such care,” were in no sense misleading to the jury and cannot, therefore, be regarded as prejudicial.
Judgment affirmed.