Appeal
from Grundy Circuit Court. -- Hon. C. H. S. Goodman, Judge.
Plaintiff
had a judgment in the circuit court, from which defendant
appealed.
The
instructions referred to in the opinion of the division are
the following:
GIVEN
FOR PLAINTIFF.
"1.
Under the charter and ordinances of defendant, introduced in
evidence, it was the duty of defendant to keep its streets
and sidewalks in good repair, free from obstruction and safe
for travel, in the ordinary modes, by day or by night, and if
the jury believe from the evidence that the boards of the
sidewalk at the place where plaintiff claims to have been
injured in said town of Trenton were absent and gone, and
said walk had become in an unsafe condition for travel, and
that defendant's officers, whose duty it was to keep
sidewalk in repair, knew or might, by the exercise of
ordinary care and diligence, have known of the unsafe
condition thereof in time to repair the same; that while
plaintiff was walking along said walk, where it was so out of
repair, and in walking by the side of another person stepped
into the hole or excavation made by the absence of such
boards or planks in said walk, and that plaintiff was
thereby, and by reason thereof, thrown down and into a ditch
adjacent thereto, without fault or want of proper care on her
part, and she was injured thereby, then the jury must find
for the plaintiff, although the jury may further believe from
evidence that plaintiff knew that said boards were absent and
gone.
"2.
If the defendant's mayor or any member of its council or
street commissioner knew, or by the exercise of ordinary care
and diligence might have known, of the condition of said walk
in time to have repaired any defect therein, if any there
was, prior to the plaintiff's injury, if she was injured
then such notice or knowledge is sufficient to impose upon
defendant and its agents and officers the duty to repair the
same and if they so knew or might have so known and failed to
repair the same, then said agents and officers were negligent
and the defendant is responsible for such negligence.
"3.
The burden is upon the defendant to prove to the reasonable
satisfaction of the jury by the preponderance of the
evidence, the defense of contributory negligence set up and
pleaded in its answer, and if it has failed to so prove and
satisfy the jury, the finding must be for plaintiff on this
issue, and although plaintiff may have known of the condition
of said walk, the law did not require of her the exercise of
extraordinary care in passing and traveling on said walk; but
only that she exercise such care and prudence in passing over
and upon said walk as an ordinary prudent person would, under
like circumstances.
"4.
In estimating plaintiff's damage in this case if the jury
find for her, they will take into consideration not only the
physical injury inflicted, the bodily pain and mental anguish
endured, her inability by reason of said injuries to perform
her ordinary avocations of life, but may also allow for such
damages as it appear from the evidence will reasonably result
to her from said injuries in the future not to exceed in all
however, the sum of twelve thousand dollars."
GIVEN
FOR DEFENDANT.
"1.
The court instructs the jury that a municipal corporation is
not an insurer against accidents upon its sidewalk, nor is
every defect therein, though it may cause an injury
actionable. It is sufficient if the sidewalks are kept in a
reasonably safe condition for travel thereon in the ordinary
modes.
"4.
The jury are instructed that municipal corporations, such as
the defendant, are only liable for such defects in their
sidewalks as are in themselves dangerous or such that a
person exercising reasonable care and caution cannot avoid
danger in passing over it; and if the jury believe from the
evidence that the defect in the sidewalk in question was not
in itself dangerous to the safety of the person passing over
it with reasonable care and caution, and that the alleged
injury was the result either of a mere accident, without
negligence of the defendant, or that it resulted from a want
of reasonable care and caution on the part of the plaintiff
then the jury should find for the defendant.
"7.
In determining the question of negligence or carelessness on
the part of plaintiff, the jury will take into consideration
all the facts and circumstances in proof, including the
condition of the sidewalk at the place where the injury is
alleged to have occurred, and the knowledge of the plaintiff
of the condition of the same, if she had any such knowledge;
and if from all the facts and circumstances of the case they
believe that negligence or want of ordinary care or prudence
on the part of plaintiff directly contributed to the accident
which caused the injury sued for, they will find for the
defendant.
"8.
Although the jury may believe from the evidence that two, or
three, or more, planks in the sidewalk in question were loose
from the stringers, still, if the jury further believe from
the testimony that the sidewalk in question was, at the time
of the injury, if any, in a reasonably safe condition for
travel in the ordinary modes upon a sidewalk, the jury ought
to find for the defendant."
"12.
Even though the jury should find for the plaintiff, in
estimating her damages they will only take into consideration
the result flowing directly from such injuries as they may
believe from the evidence plaintiff at the time received; and
they will allow her only such damages as they may believe
from the evidence she has actually sustained.
"13.
The jury are further instructed that the burden of proof is
upon the plaintiff and before the jury can find for her she
must prove by a preponderance of the evidence to the
satisfaction of the jury each of the following facts: First,
That she was injured by reason of a defect in the sidewalk in
proof; second, That the town authorities had actual notice of
the defect or that the defect complained of had existed for
such length of time that said authorities could, by the
exercise of ordinary diligence, have known of such defect and
reasonable time to repair the same; and if she has not so
satisfied the jury by a preponderance of the evidence, they
will find for the defendant.
"14.
The jury are the sole judges of the weight of evidence and of
the credibility of the witnesses, and in considering the
evidence and the weight to be given to the testimony of the
witnesses, the jury will take into consideration the conduct
and demeanor of the witnesses while testifying, their
apparent candor or lack of candor, their interest or lack of
interest in the suit, the fact that they have been
contradicted by other witnesses, if such is the fact, the
fact that they have made contradictory statements about the
matter of which they have testified, if such be the fact, as
well as all other facts and circumstances detailed in
evidence, and if the jury believe from the evidence that any
witness has willfully sworn falsely as to any material fact,
then they are at liberty to disregard the whole of the
testimony of such witness."
GIVEN
BY THE COURT.
"5.
Although the jury may believe from the evidence that
defendant suffered planks and boards in the sidewalk in
question to become and remain loose and detached from the
stringers, if the jury believe from the evidence that
plaintiff knew of said defective condition of said sidewalk
and that so knowing thereof, while walking along and passing
over said sidewalk she was [laughing and talking with the
party with whom she was walking and] not using reasonable
care [or noticing where she was stepping or going], she
stepped on said loose boards and planks or into a hole and
thereby was thrown into the ditch and injured thereby, then
the plaintiff cannot recover in this action and the jury must
find for the defendant."
"11.
In making up their verdict the jury will wholly disregard all
proof of defects in the sidewalk in question except such
proof as relates to the defect at the place mentioned in the
petition and as shown by the testimony [of the plaintiff] as
the place where the injury occurred."
The
last two instructions were given by the court without the
words included in the brackets, which were contained in the
original requests of defendant for the instructions. The
court's modifications consisted merely in the erasure of
those words.
The
other necessary facts appear in the opinion of the division.
Affirmed.
