City of Covington v. Jones

• Decision Date: 10 March 1904
• Parties: CITY OF COVINGTON v. JONES.
• Court: Kentucky Court of Appeals

79 S.W. 243

CITY OF COVINGTON v. JONES.

Court of Appeals of Kentucky.

March 10, 1904

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by Katie Jones against the city of Covington. Judgment for plaintiff, and defendant appeals. Affirmed.

F. J Hanlon, for appellant.

B. F Graziani, for appellee.

O'REAR J.

The evidence shows that appellee fell into a hole in the pavement on one of appellant's streets, in the nighttime, and was injured. The hole was about two feet deep, about three feet wide, and extended across the pavement. The place was not lighted. Appellee sustained a fractured rib, perforating or damaging a lung. She was confined to her room for about a month, and continued for some months after to suffer from the injuries. Her physician's bill was $50. The jury awarded her $500 damages against the city.

Appellant contends that it should have had a peremptory instruction at the close of plaintiff's case because it was not then shown that the city knew of the hole, or ought to have known of it by ordinary diligence. The proof of the plaintiff showed that the pavement had caved in early Saturday morning or Friday night. Appellee was injured Saturday night. The street was considerably traveled. Whether defendant could have learned of the condition by ordinary diligence was a question properly for the jury, and the court was right in overruling the motion for a peremptory instruction against plaintiff. Without resting its case there, appellant introduced its evidence showing that it did learn of the condition Saturday morning, but did not put a light at the hole till about 10 o'clock Saturday night, after appellee's injury. Even if the peremptory instruction should have gone at the close of plaintiff's case defendant's evidence cured the deficiency in the evidence.

It is not prejudicial in this case that the court's instruction as to appellant's duty apparently required the city to keep its sidewalk in "safe" condition for travel instead of "reasonably safe," for it is manifest that a hole such as this one in a sidewalk was not "reasonably safe." It was not possible for the jury to have a difference of opinion on that point. The only questions, under the evidence, about which they might have differed, were whether the city had notice or reasonable time to learn of the conditions, and, if so, the amount necessary to compensate plaintiff for her injury,...