City of Covington v. Asman ( 1902 )

Optnton op tur court p.y

JUDGE BURNAM

Reversing.

The appellee, Emma Asman, brought this suit to recover damages for personal injuries received by her on the 4th of September, 1901, resulting from an alleged defective condition in one of the sidewalks of the eitv of Covington. It appears from the testimony that the brick pavement in front of the Sisters’ School had been replaced by one made of cement, Avhicli Avas about three inches higher than the brick pavement, and at the point where the cement pavement stopped, and the brick began, a small gutter ran from the side yard across the pavement along the edge of the cement pavement to the guiter in the street, and that near the curbing one or two bricks were missing and two or three were loose, and that appellee stepped into the hole from which the missing brick had been taken, Avhich resulted in a severe sprain of her ankle. A jury trial resulted in a A-erdict and judgment in her favor for $523, and, a motion for a new trial having been overruled, the city prosecutes this appeal. The main ground relied on for reversal is that the trial court erred in instruction No. 1 given to the jury.

A city is not responsible for every accident that may happen in its streets which results in personal injuries. With the greatest vigilance and utmost foresight, there will be accidents for which no one, in any legal sense, is to blame. The corporate» authorities are only .bound to use reasonable skill and diligence to make4 the streets and sidewalks safe and convenient for travel. They art4 under no obligations to provide for everything that may happen upon them, but only for such instances as ordinarily exist, or such as may be reasonably expected to occur. See Dill. Mun. Oorp., section 1019,, and Elliott. Roads & A. sections 613-615. There are very few streets that can be kept so absolutely safe as to preclude4 the possibility of accident, and the law does not prescribe4 for municipal corporations a measure of duty which is impossible of fulfillment, or a different rule of liability from that which ordinarily obtains in the affairs of life. But if does impose upon them the duty of guarding against such dangers as can or ought to be foreseen by the exercise of prudence and care. But when an accident happens by reason of-some slight defect, from which danger was not reasonably to be anticipated, and which, according to common experience, was not.likely to happen, it is not actionable negligence. See Beltz v. City of Yonkers, 148 N. Y., 67, 42 N. E., 401.

The question whether reasonable and ordinary care has been used by the city is ordinarily for a jury. In instruction No. 1 given to the jury in this case, they were told that if a hole4 or depression existed in the sidewalk, with loose bricks lying about, and appellee’s injuries were received in consequence of such depression, they should find in her favor, if they believed from the evidence that the defendant knew, or by the exercise of ordinary care could have known, of llio existence of such hole or depression in ilie sidewalk long enough fo have enabled if to have had it repaired before the date of appellee's alleged injury, if they also believed that at the time of such injury appellee was exercising ordinary care in walking along the sidewalk. Tliip, instruction was erroneous and prejudicial, because it did not submit to the jury for their determination whether the sidewalk at the time and place whore the injury occurred was in a reasonably safe condition for the use of persons of ordinary care and prudence.

For reasons indicated, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.