29 Kan. 1 | Kan. | 1882
The opinion of the court was delivered by
This was an action brought by Nettie V.. Hamilton against the city of Osborne, for damages alleged to have been caused by reason of a defective sidewalk. The defendant demurred to the plaintiff’s petition, which demurrer the court overruled. In this we do not think that the court below committed any error; but if it did, the defendant did not except to the ruling of the court. The defendant then answered, and the plaintiff replied; and upon these pleadings, (the petition, answer and reply,) the case was tried by the court and a jury; and on January 27, 1882, the jury found a general verdict in favor of the plaintiff and against the defendant, assessing the plaintiff’s damages at $470; and, also, at the same time made special findings of fact. The defendant then moved for judgment in its favor upon the special findings of the jury, and on February 4, 1.882, this motion
“ Question: Did the plaintiff exercise ordinary care and prudence to guard against an accident at the time at which she is alleged to have fallen? Answer: Yes.”
There is one special finding, however, that has a tendency to show that the plaintiff did not exercise proper care and diligence. That special finding reads as follows:
“Q,. Was plaintiff in a position at the time of the accident that she could have knowledge of the alleged defect by exercising ordinary care and prudence? A. Yes.”
The court below rendered judgment in favor of the plaintiff and against the defendant, upon the general verdict and special findings of the jury, for the sum of $170 and costs. We perceive uo error in this;- and therefore the judgment will be affirmed.