City of Maysville v. Guilfoyle

• Decision Date: 26 April 1901
• Citation: 110 Ky. 670,62 S.W. 493
• Parties: CITY OF MAYSVILLE v. GUILFOYLE. [1]
• Court: Kentucky Court of Appeals

62 S.W. 493

110 Ky. 670

CITY OF MAYSVILLE v. GUILFOYLE. ^[1]

Court of Appeals of Kentucky.

April 26, 1901

Appeal from circuit court, Mason county.

"To be officially reported."

Action by Jennie Guilfoyle against the city of Maysville to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

E. L Worthington and Thos. M. Wood, for appellant.

A. E Cole & Son and Thos. R. Phister, for appellee.

WHITE J.

The appellee sought to recover for injuries received by falling on a street of appellant. The defense is a denial of liability because--First, the place where the injury occurred was not a public street of the city; second, contributory negligence of appellee. On trial, a verdict and judgment for $2,000 was rendered, and, after appellant's motion for a new trial had been overruled, this appeal is prosecuted.

The question as to whether the street where appellee received her injury was a public highway was submitted to the jury under proper instructions from the court. There is no complaint as to the instructions on this question. Appellant's counsel seriously contend that the court should have given a peremptory instruction to find for it on the question of contributory negligence. The facts of the injury proven by appellee herself are that she knew of the defect in the walk and that it had existed for some time; that on the occasion of the injury appellee was called to the house of a neighbor her brother-in-law, in the nighttime, because of the serious illness of a child; that in going to the neighbor's house she fell into the ditch or low place in the sidewalk, and received the injuries complained of; that when she fell into the ditch or low place she did not have the defect in mind. It is contended that this testimony of appellee herself precludes a recovery, and that a peremptory instruction should have been given. The question of negligence is always a question of a failure to use care and caution. Appellee was bound to use the care and caution of an ordinarily prudent person. If she did this, she was not guilty of negligence; if she failed to use this care, she was guilty of negligence. This question of contributory negligence was submitted to the jury, and they were told that, if she was guilty of contributory negligence, she could not recover. Under the circumstances of the injury as proven, we are not clear that the appellee was guilty of contributory negligence at the time she fell and received her injury, and it is fair to presume that the trial judge was not clear that she failed to exercise ordinary care, and because of this doubt in his mind submitted the question to the jury. In this action there was no error.

Where the facts as proven satisfy the mind of the court that the plaintiff failed to use ordinary care, and by such failure contributed to the injury, and that if a verdict was returned in favor of the plaintiff the court would set it aside and grant a new trial, we think in such case a peremptory instruction should be given. But, as here, when the court is in doubt as to whether certain acts proven show a failure to use care of an ordinarily prudent person, it is proper to submit the question to a jury. It cannot fairly be said as a...