Evelyn Drifmeyer sued to recover for alleged injuries sustained when 'she fell in the entranceway to the Drake Hotel Bar in Lexington owned by Rojo, Inc., and, operated by Drabar, Inc. The jury awarded' her $8,936.44 for pain, suffering, permanent disability,' arid medical expense. On appeal it is urgéd that (1) The evidence is insufficient; (2) Evelyn was contrib.u-. torily negligent as a matter of law; and' (3) the jury was erroneously instructed as to permanent damages from which an ex-' cessive verdict resulted.
Evelyn and her husband went for a stroll' on the evening of September 24, 1958. Some-twо'or three hours later she fell as she was entering the Drake Hotel Bar, referred to as Drabar. She assigned as the cause of her fall a deposit of vomit covering an area two feet square in front of the'doorway and on the entranceway.
She described the mishap as follows:
“ * * * I went on across the street and started into the Drabar. I got to the door and took one step and started to raise the other'foot tо go on in and right then I did a split and fell right there’ in the door. When -I got up I was'all wet-with .something and my leg and my arm hurt, and my hip was hurting, and my clothes were a mеss where I fell into this stuff.”
She said that although she had looked down when she stepped onto1 the entrance-way she could not see thе slime because the lights in the entranceway were out, little light came through the opened door from the dimly lit interior, and the light from the strеet light across the street was shaded by an awning over the entranceway.
The entranceway was an alcove about three or fou-r feet wide extending sixteen feet across the front of the Drabar. The surface was described as a “marble-like substance * * * real slick.” Its level was about one and one-half inches above the sidewalk.
After falling,, appellee was assisted into the Drabar. Appellants’ manager was called. When advised as to what had happened, according to appellee, he called an employee and said, “I told you half an hour ago to clean that stuff' up.”
Appellee urges that appellаnts are liable under a double-barrel theory. It is insisted that appellants -failed to use ordinary care in the illumination of their entranceway and that they knew or should have known of the deposit.
Appellants contend that appellee’s evidence was insuffiсient on which to submit the case to the jury. The court instructed the jury that it was the duty of the appellants, as owner and operator оf the bar, to keep the premises in a reasonably safe condition and to usé ordinary care to provide appellеe, as a guest thereof, with a properly lighted entranceway, free of vomit, and that if they failed to do either of these • things within a reasonable time after they knew, or should have known, of such failure, and if such failure was the direct and proximate cause of аppellee’s injuries, then it should find for the appellee, as it did.It is not contended that the rule stated in the instruction is incorrect."
Appellee was entering appellants’ place of business..ostensibly for a purpose
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directly connected with their business and wаs an invitee. Kentucky & West Virginia Power Co. v. Stacy,
Appellants’ argument concerning the insufficienсy of the evidence does not point out any single fact which appellee failed to prove in order to establish a сasé under the rule stated. Appellants’ attack is directed at the quality of the proof rather than to any failure of it. It is summed up in this statеment from their brief, to-wit: “It is incredible to suppose or imagine that vomit would be left completely blocking the outside entrance tо an operating business for a half hour’s time!” However incredible it might seem to appellants or their counsel, the situation describеd does not seem too incredible, nor apparently did it seem so to the jury or the trial judge. The evidence was sufficient to take the case to the jury.
As to the argument that the appellee was contributorily negligent, the testimony for the appellants was in сonflict with the testimony given in behalf of appellee. In substance, the proof of appellants was to the effect that thе entranceway was well lighted, and all knowledge of the deposit was denied. . Their testimony was also to the effect that appellee was so drunk that she could not have seen a deposit and thus was contributorily negligent.
The evidence was conflicting on thе issue of contributory negligence, and it was submitted to the jury under a proper instruction. In such case, this Court will not usurp the prerogative оf the jury to believe a witness or set of witnesses, as opposed to another set of witnesses, and will not disturb the jury’s verdict. Stewart v. Sizemorе, Ky.,
The final contention made is that the jury should not have been instructed on permanent injury. Dr. Harvey Chenault, physician and surgeon, whose quаlifications were admitted, testified that he performed an operation on appellee to correct a ruptured intervertebral disc at the lumbo-sacral area on the left side. In response to a question as to the percentage of permanent disability, he said, “I think that ten to fifteen per cent disability to the body as a whole is a reasonable one.” Appellаnts attack this statement as a guess and insist that it is not positive and satisfactory evidence and that it suggests only a possibility or probability of permanent injury.
First, the statement “I think” is tantamount to saying “in my opinion.” There is no method of determining the exact degree of such injury, and the opinion of a qualified physician and surgeon is proper evidence thereof. Just prior to the statement as to percеntage of disability, the witness had testified that appellee had a permanent disability as a result of her injury. H. & S. Theatres Co. v. Hampton, *36 300 Ky. 677, 190 S.W.Zd 39, is not in point, since the doctor there gave no positive statement. There is no merit in appellants’ contention. It should be noted that appellants do not argue that the damages are excessive, but content themselves with arguing that the giving of an instruction on oermanent injury was unwarranted.
Judgment affirmed.