Wells, J.

As to the question of defect, we think this case must be governed by Drake v. Lowell, 13 Met. 292, and Day v. Milford, 5 Allen, 98.

The instructions to the jury did not correctly state the law applicable to the case. But in so far as they were wrong, they were so by the request of the defendant.

The question for the jury was whether, with the knowledge which the plaintiff had of the condition of the sidewalk, by rea» *519Bon of the erection upon and over it, it was consistent with ordinary care and prudence for her to pass under the erection. Whether she was in the exercise of such care and prudence was to be determined by the nature of the defect, the extent of her knowledge, and what was reasonably to be required or expected from a person of ordinary care and prudence in her situation.

The defendant however sought to take advantage of the special apprehensions of her mind, as she had expressed them in her testimony at the trial, and upon a former occasion. Instructions asked for, by which those apprehensions were made the test by which to decide the question of her care at the time of the accident, were adopted by the court. It was with reference to this test that the remark was added by the judge, that “ the question was, what was her state of mind at that time.” Adopting the state of her mind as the proper test, as the judge did by the request of the defendant, we are not prepared to say that this was not a correct application of it. However that may be, we are of opinion that the application thus made was in exact accordance with the instructions asked for by the defendant, and therefore gave no right to except.

The further instruction asked for proposed no change in the character of the test to be applied, except that the defendant then sought to make the case turn upon what the plaintiff thought of the safety of the erection in the morning, before the time of the accident, rather than what she thought of it at the time of the accident. As already suggested, we are not prepared to say that this would have been more nearly correct than the instructions previously asked for and given. If it were, we do not think the defendant could then require the court to change the previous instructions, so given by request; certainly not unless the new instruction asked for proposed a correct statement of the law. This it did not do.

But beyond all questions of the comparative correctness of the instructions first asked for and given, and that subsequently asked for and refused, it appears to us that no prejudice could come to the defendant from the adoption, by the court, of the former rather than the latter; because, upoir. the plaintiff’s own testi*520tnony, the fact that she had apprehensions of danger from the erection, at the time of passing under it and receiving the injury, was quite as clearly established as it was that she had such apprehensions at any previous time. Exceptions overruled.