City of Newport v. Lewis

• Decision Date: 19 November 1913
• Citation: 160 S.W. 507,155 Ky. 832
• Parties: CITY OF NEWPORT v. LEWIS.
• Court: Kentucky Court of Appeals

160 S.W. 507

155 Ky. 832

CITY OF NEWPORT v. LEWIS.

Court of Appeals of Kentucky.

November 19, 1913

Appeal from Circuit Court, Campbell County.

Action by Virginia Lewis, by her statutory guardian, against the City of Newport. Judgment for plaintiff, and defendant appeals. Affirmed.

Otto Wolff, of Newport, for appellant.

Howard M. Benton and Ramsey Washington, both of Newport, for appellee.

SETTLE J.

The appellee, Virginia Lewis, an infant five years of age, suing in her own right and by her statutory guardian, recovered in this action a verdict and judgment in the court below of $200 damages against the appellant, city of Newport, because of injuries sustained by her from a fall caused, as alleged in the petition, by the negligence of the city in failing to keep one of its sidewalks in a reasonably safe condition for the use of pedestrians.

It appears from the averments of the petition that appellee sustained a fracture of a bone of one of her arms from falling into a hole in the center of the sidewalk; the hole consisting of a space of four or five feet in length and two or more feet in width, produced by missing bricks, which left a depression or hole in the sidewalk with "bricks sticking up in saw fashion" on the sides and ends. According to the testimony of some of the witnesses introduced in behalf of appellee, the depression where appellee fell was an inch or an inch and a half below the surrounding bricks; but, according to the testimony of her aunt, Mrs. Callahan, and others, the depression was as much as the thickness of the surrounding bricks.

The answer of appellant contained a traverse and plea of contributory negligence, and its affirmative matter was controverted of record. On this appeal, prosecuted by the city, it seeks a reversal of the judgment recovered by appellee upon two grounds: First, error of the trial court in refusing the peremptory instruction asked by appellant at the conclusion of the evidence; second, that the verdict is excessive.

In support of the first ground, it is argued by appellant's counsel that the evidence introduced in behalf of the appellee failed to show that her fall and fracture of her arm were caused by the hole in the pavement. It appears from the bill of evidence that the only eyewitness to the accident was Mrs. Callahan, appellee's aunt. Appellee, by reason of her immature years, was not introduced. Mrs. Callahan testified that she was walking on the pavement pushing a "perambulator" containing her baby, accompanied by her little daughter, three years of age, and the appellee and that the two little girls were some feet in advance of her when they fell on the pavement, and appellee sustained the fracture of her arm. Upon the cross-examination she became somewhat confused in her statements, which were once or twice indefinite as to where the fall of the child occurred, that is, whether it occurred before stepping into the depression or after getting therein; but upon her redirect examination her testimony became more certain and direct, as the following quotations therefrom will show "Q. What caused her to fall, the hole? A. Well, the hole or bad brick, you know. Q. There is nothing sticking up there, at that point, is there? A. Well, the brick, you know was higher than the earth. Q. Before she stepped down in there, and that was what caused her to fall? A. Yes, sir. Q. The judge asked you a question a moment ago--if she fell just before she got to the hole--you do not mean for the jury to understand-- [The defendant objects.] Q. Well, can you state how she did fall, or at what point she fell, whether it was before she got to the hole, at the time she got to the hole, or after she got to the hole? A. It was after she got to the hole--when she got there, you know, she fell, and fell right in that hole. Q. Was there anything on the sidewalk to cause her to trip before she actually got to the hole? A. No; there wasn't anything there."

No other witness saw, or attempted to state, where or how the appellee fell, and it is fairly apparent from the testimony of Mrs. Callahan, as a whole, that she did not fall until the hole was reached by her, and that the fall was caused by the presence of the hole in the sidewalk of the projecting ends of the surrounding bricks. It is also apparent from the testimony of Mrs. Callahan and several other witnesses introduced for appellee that the presence of the hole in the sidewalk was of sufficient depth to render the sidewalk unsafe and, in fact, dangerous to persons using it furthermore, that this defect in, and dangerous condition of, the sidewalk had continued for more than a year previous...