City of Dayton v. Lory
| Decision Date | 10 March 1916 |
| Citation | 169 Ky. 94,183 S.W. 252 |
| Parties | CITY OF DAYTON v. LORY. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County.
Action by Mary A. Lory against the City of Dayton. From a judgment for plaintiff, defendant appeals. Affirmed.
E. E Kelly, of Dayton, and Kelly & Regenstein, of Newport, for appellant.
A. C Hall, of Newport, for appellee.
On the west side of Berry street, in the city of Dayton, there is a cement sidewalk, which is 11 feet in width. It is composed of two rows of cement blocks, which are about 36 inches in width and 5 1/2 feet in length, and the ends of the blocks, in forming the sidewalk, come together in its center. One of these blocks tilted up at one corner, in the center of the sidewalk, to the height of from 1 1/2 inches to 5 inches above the level of the sidewalk. The evidence given upon the trial for the appellee, Mary A. Lory, was that the elevation was from 2 to 5 inches above the level surface of the sidewalk, while the evidence for the appellant, city of Dayton, was to the effect that the elevation would not exceed 2 inches. Be this as it may, along the center of the sidewalk the elevation of the block gradually grew less from the highest point of elevation, at the corner, to the other corner in the center of the sidewalk, which was substantially upon a level with the surface of the sidewalk. From the highest point of the elevated corner to the curbing the elevation grew less on toward the curb. This obstruction in the sidewalk had been permitted to remain, as described, for a year or two, and the officials of the city had actual knowledge of it and had given, some months before, notice to the abutting property owner to repair the sidewalk at that point. A large tree stood near the edge of the sidewalk, and the elevation of the concrete block presumably, was caused by an enlargement of the roots of the tree, which extended under the sidewalk.
On the 28th day of March, 1913, the high water from the Ohio river entered the house of appellee, who was a resident of the city, which made it necessary for her to remove from her dwelling to another building which was free from the water, and near to Berry street. While her daughters were engaged in removing some household effects with a wheelbarrow to her new place of abode, the appellee went to a grocery and there obtained some small packages of groceries, and, carrying them in her arms, proceeded along Berry street, and when at the point where the concrete block was elevated in the sidewalk, she was observing her daughters removing the household effects mentioned above, when she tripped over this obstruction, her ankle was turned, and she was thrown upon the cement sidewalk on the side next to the abutting property. Her ankle suffered a severe sprain, but she secured a stick, and with its assistance got to her home. On the next day her ankle became greatly swollen, and a physician was called, but it was swollen to such an extent that he could not bandage it properly until 2 days thereafter. The condition of her ankle was such that she was unable to walk and was confined to her home for a period of about 1 month, and for another month thereafter was obliged to use crutches in walking, and thereafter, for considerable time, a cane. While confined to her home she suffered greatly from the pain of the sprain, and was obliged to keep her foot elevated in a chair to obtain any ease. Thereafter, and at the time of the trial of this case, which occurred in March 1915, she was unable to walk to any considerable extent, without her ankle failing her, and it frequently was swollen, rendering it necessary to treat it with liniments, and she has been unable to follow her usual avocation, that of a house cleaner, with the same success and efficiency as theretofore because of her inability, on account of the injured condition of her ankle, to mount ladders, or to stand for a long period of time upon her feet. Previous to her injury she ordinarily made a wage of $7.50 per week. She was 67 years of age, but was a strong woman at the time of the accident, and the evidence of the physician who treated her was to the effect that the injury, on account of her age, was permanent, and that there was a small fracture of a bone of the foot.
She instituted this suit in the Campbell circuit court to recover of the city the damages which she alleged she had suffered by reason of the injury, and in her petition alleged that the city had negligently failed to keep the sidewalk, at the point of her injury, in a reasonably safe condition for public travel, and had actual knowledge of its defective condition previous to the time of her injury, and a sufficient time theretofore in which to have repaired it, and put it in good condition, and that by reason of its defective condition she had suffered the injury complained of. The city, by its answer, traversed the allegations or negligence alleged in the petition, and also pleaded as a defense the contributory negligence of appellee. The trial resulted in a verdict for the appellee in the sum of $1,200 in damages, and a judgment was rendered in her favor against the appellant for that amount, accordingly. The appellant's motion and grounds for a new trial being overruled, it saved proper exceptions, and has now appealed to this court.
The grounds for which a reversal is urged are: First. That the damages allowed are excessive, and appear to have been given under the influence of passion or prejudice. Second. The verdict is not sustained by sufficient evidence. Third. The court erred in giving instructions Nos. 1, 2, 3, and 4. Fourth. The court erred in refusing to give an instruction offered by the appellant. Fifth. The verdict was contrary to law, because the proof showed that the elevation of the concrete block was not over an inch and one-half or two inches. Sixth. Because two of the jurors who tried the case were not qualified to act as jurors because of not being housekeepers. Seventh. Because of the misconduct of one of the jurors during the trial, which unduly influenced the jury to render a verdict for the appellee.
Under the instructions and the evidence in the case the jury was authorized to find for appellee the value of her physician's services, not to exceed $25, and the reasonable value of the time lost by her while totally incapacitated from working, the sum of $7.50 per week, for not exceeding 20 weeks, and then such sum as the jury might believe from the evidence would fairly and reasonably compensate her for such mental and physical suffering as she had endured or that it was reasonably certain she would endure in the future, and for the diminution of her power to earn money, if any, not to exceed in all the sum of $5,175, the amount claimed in the petition. While the amount of the damages allowed is large, and the jury seems to have gone to the full limit in so doing, but, considering all the elements of damages which they were authorized to allow and the proof bearing upon them, it cannot be said that the amount allowed was so excessive as to strike the mind at first blush as having been superinduced by passion or prejudice. There is nothing to indicate that the jury acted under the influence of any passion or prejudice about the matter, and there is no reason assigned for arriving at such conclusion. In City of Richmond v. Martin, 78 S.W. 219, 25 Ky. Law Rep. 1516, a judgment for $1,500, for injuries similar to those suffered by appellee, was affirmed.
The second ground for a new trial is not insisted upon by counsel in his brief, and, besides, without undertaking to state the evidence, further than what has already been said, there was ample evidence if the jury believed it to support the verdict.
No objection is urged to the instructions given by the court to the jury, and they seem to embrace the entire law of the case.
The appellant insists that the court erred to its prejudice in refusing to give the instruction offered by it. The instruction is as follows:
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