City of Latonia v. Hall

• Decision Date: 26 June 1907
• Parties: CITY OF LATONIA v. HALL.
• Court: Kentucky Court of Appeals

103 S.W. 354

CITY OF LATONIA v. HALL.

Court of Appeals of Kentucky.

June 26, 1907

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by Alice Hall against the city of Latonia. Judgment for plaintiff. Defendant appeals. Affirmed.

Orlando P. Schmidt, for appellant.

Frank M. Tracy, for appellee.

HOBSON J.

In January, 1905, Miss Alice Hall, while walking along on the sidewalk on Ohio avenue, in the city of Latonia, about 7:30 p. m., stepped upon a clinker in the sidewalk, which caused her to fall, breaking her arm, straining her ankle, and suffering bruises about the head and face, by reason of which she was seriously injured. She brought this suit against the city to recover $5,000 as damages, charging that the sidewalk was in a defective and dangerous condition, and that this was known to the defendant, or, by the exercise of ordinary care should have been known to it, and that it had negligently failed to remedy the defect. On a trial in the circuit court she recovered judgment for $850, and the city appeals.

The verdict of the jury is not excessive if the plaintiff was entitled to recover under the evidence, and the instructions of the court to the jury fairly submitted the case to them. The instructions given were those that have often been approved by this court, and those that were asked by the defendant and not given were substantially embraced in those given by the court. It is earnestly insisted, however, for the appellant, that the court should have instructed the jury peremptorily to find for the defendant, and this is the most serious question in the case. The plaintiff showed that she got off of a street car at the corner of Ohio avenue; that there was no house on Ohio avenue within 200 feet of the corner; that it was very dark; that she was afraid, this causing her to hurry, and in hurrying she stepped on the clinker. It was a cinder sidewalk. The cinders had been taken from a rolling mill or foundry, and without sifting had been put upon the sidewalk. She testified that it was a very rough sidewalk. It had been made during the previous fall. A witness for her, who went to the place where she fell the next morning, testified that he found clinkers there torn up in a manner that looked like some one had fallen. The walk was soft. It had been snowing, but the snow was about gone. He saw the impression where a clinker had turned over partly out of the...