City of Louisville v. Dahl

• Decision Date: 18 May 1916
• Citation: 170 Ky. 281,185 S.W. 1127
• Parties: CITY OF LOUISVILLE v. DAHL.
• Court: Kentucky Court of Appeals

185 S.W. 1127

170 Ky. 281

CITY OF LOUISVILLE v. DAHL.

Court of Appeals of Kentucky.

May 18, 1916

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Edna Dahl against the City of Louisville. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W S. Clements and Pendleton Beckley, both of Louisville, for appellant.

Chesley H. Searcy, of Louisville, for appellee.

CLAY C.

This is a personal injury case, in which plaintiff, Edna Dahl recovered of the defendant, city of Louisville, a verdict and judgment for $2,000. The city appeals.

According to the evidence for plaintiff, the concrete pavement on Melwood avenue was broken in such a way as to form a shell or crust. While walking along the street for the purpose of catching a car her foot caught in the concrete, and she was thrown to the ground. The accident happened about 8:15 p. m June 19, 1913, and it was then dark. Plaintiff weighed about 180 pounds, and her fall was a severe one. Her left side and left limb were badly bruised, and the radius of her left arm was fractured. Dr. Hartman, who examined the sidewalk shortly after the accident, says that he lighted a match, and found that a piece in the sidewalk had been broken, and that this piece extended up to about the height of three inches. Though he did not measure, but only estimated, the distance, he was sure that it was not less than three inches, but was probably between three and three and one-half inches. He also said that the projecting portion overlapped the other part and was easy to stumble over. Other witnesses testify to the same condition. For the defendant several witnesses who actually measured the elevation of the concrete at the place of the injury testified that the elevation was from one-half to three-quarters of an inch. On the other hand, two or three witnesses for plaintiff testify that after the accident the projecting concrete bore evidences of having been pressed down.

The city contends that the trial court erred in refusing to sustain its motion for a peremptory instruction. This contention is based on the proposition that the witnesses for plaintiff merely estimated the height of the projecting concrete, and that their testimony was negligible in value compared to that of the witnesses for the city, who made actual measurements which showed that the concrete did not project higher than three-quarters of an inch. It may be conceded that actual measurements of distances are entitled to more weight than mere estimates, and that for this reason some of the courts hold that testimony based on mere estimates or opinions is so conjectural and indefinite as to raise no real conflict with testimony based on actual measurements made by reliable witnesses, and may therefore be disregarded. Jones v. City of Detroit, 171 Mich. 608, 137 N.W. 513; Wanta v. Milwaukee Elec. Ry. L. Co., 148 Wis. 295, 134 N.W. 133; Lalor v. City of New York, 208 N.Y. 431, 102 N.E. 558. In this state, however, both the credibility of the witness and the weight of his testimony are for the jury. We are not at liberty to disregard his testimony on the ground that it is highly improbable or is at variance with other testimony of a more convincing character.

It is only where the facts testified to are utterly at variance with well-established and universally recognized physical laws, and therefore inherently impossible, that courts may refuse to submit the case to the jury. Wasioto & B. M. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629; L. & N. R. R. Co. v. Chambers, 165 Ky. 703, 178 S.W. 1041.

The rule in this state is that, where the defect in the sidewalk is such that reasonable men may well differ as to whether or not a sidewalk with such a defect is reasonably safe for travel by persons exercising ordinary...