City of Covington v. Belser

• Decision Date: 10 December 1909
• Citation: 137 Ky. 125,123 S.W. 249
• Parties: CITY OF COVINGTON v. BELSER.
• Court: Kentucky Court of Appeals

123 S.W. 249

137 Ky. 125

CITY OF COVINGTON v. BELSER.

Court of Appeals of Kentucky.

December 10, 1909

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

"To be officially reported."

Action by Elizabeth Belser against the City of Covington. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John E Shepard, for appellant.

Robert C. Simmons and Charlton B. Thompson, for appellee.

CLAY C.

On April 2, 1906, appellee, Elizabeth Belser, fell and broke her kneecap on the sidewalk on the west side of Greenup street one of the public streets of Covington, Ky. She instituted this action against the city to recover damages for the injury. The jury returned a verdict in her favor for $2,250 and the city of Covington appeals.

While several grounds for reversal are urged, we deem it unnecessary to consider any ground, except the failure of the court to award appellant a peremptory instruction. The accident occurred shortly before 6 o'clock in the morning. It was light at the time, but the sun had not risen. Appellee had gone north over the sidewalk where the accident occurred on her way to a bakery. At the place of the accident there is a small drain, which extends from the property line to the curb. At the time of the accident she was proceeding south, and she fell just as she stepped over the drain. She claims to have stumped her toe on a brick which projected upwards about three-quarters of an inch. When her foot struck the brick, she brought her other foot forward to protect herself, but slipped on the uneven surface of the sidewalk, which was partly covered with a slight frost. Appellee had known the pavement all of her life. She was looking in front of her, and was picking out her way as she proceeded along the sidewalk. There was a grade towards Trevor street, and a slope from the property line to the curb; the fall in the latter case being a little over an inch to the foot. There was testimony to the effect that the sidewalk bulged up and down, with hills and hollows, and that one brick was standing up where Mrs. Belser fell. Others testified that the bricks bulged, and were rough and uneven. One witness described the sidewalk as an awfully rocky looking affair; another spoke of it as awfully hilly; while a third witness described the sidewalk as having a raise. There is a photograph in the record, which shows some slight elevations and depressions in the sidewalk. There is no evidence that any of the other bricks projected as high as the one against which appellee struck her toe.

The question before us, then, is whether or not the sidewalk at the place of the accident was in a reasonably safe condition for the use of persons in the exercise of ordinary care. The rule upon this subject is well stated in the case of City of Richmond v. Courtney, 32 Grat. (Va.) 792, where the court said: "It is not to be expected, and ought not to be required, that a city should keep its streets at perfect...