Nairn v. Columbus

OPINION By GEIGER, PJ. This matter is before this Court upon appeal on questions of law from the judgment of the Court of Common Pleas rendered on a verdict returned by the jury for the plaintiff in the sum of $500.00. In her amended petition the plaintiff stated that on the 13th of April, 1939, she was walking north on South Fourth Street when she caught her left heel in a break or hole in the sidewalk and tripped and fell, injuring herself as stated; that said sidewalk was negligently allowed to become and was out of repair on account of the crumbling of the cement and concrete which resulted in forming an irregular and jagged hole; that said break or hole had existed for a period of more than one year; that the defendant had actual knowledge of the existence thereof, or should have acquired knowledge on account of the period of time that said break or hole had existed. Plaintiff asks judgment in the sum of $2000.00. The City answered admitting its corporate capacity and denying each and every other allegation not admitted, and alleges that if the plaintiff incurred injury or damage as set out in the amended petition said damage was solely by reason of her own negligence and not by reason of any negligence on the part of the defendant. To this a reply was filed denying that her injury was due to her own negligence. A unanimous verdict returned by the jury in favor of the plaintiff. The motion to set aside the verdict and for a new trial was filed and overruled; and the court rendered a judgment upon the verdict. City gave notice of appeal from the judgment by the Court overruling the City’s motion for directed verdict and from final judgment of the court in the sum of $500.00. The appellant assigns as errors that the court erred in the admission of evidence; in overruling the defendant’s motion for directed verdict at the close of the plaintiff’s case and at the close of all the evidence; that the court erred in giving special charge No. 4 offered by the plaintiff; erred in its charge to the jury; that the verdict is against the manifest weight of the evidence. [47] In addition to the verbal testimony there were introduced certain photographs which exhibited the break in the sidewalk into which the plaintiff’s heel slipped causing her to fall. There is not much difference in the testimony offered. The defendant, however, complains that the Court committed error in permitting an expert cement worker to testify as an expert as to the cause of the crack in the sidewalk and its possible duration. We have read this evidence and find no error in its admission. If there was a break in the sidewalk the obligation was upon the plaintiff to show either that the city had actual knowledge of it or to show that it existed for such a time that knowledge would be presumed. The man who testified as to the period of time that the hole was in forming and its existence was well qualified to give judgment upon this point. The defense is also made that the plaintiff should have discovered the obstruction in the sidewalk and avoided it. The plaintiff gives a very concise and reasonable statement of why she did not discover the obstruction, stating that she had certain bundles in her hands and arms; that she was proceeding in the usual manner along the sidewalk when her heel struck the depression and she was thrown. Her statement seems to be reasonable and we have no disposition to reverse a judgment based upon the unanimous verdict of the jury. We have read the general charge of the Court which we think is without error. Complaint is made that the Court erred in giving the plaintiff’s special charge No. 4 offered before argument: “The court further instructs you that plaintiff had the right to assume that the defendant had performed its duty under §3714 GC, and that South Fourth Street on the day of the accident was open, in repair, and free from nuisance.” Sec. 3714 provides that council shall have the care, supervision and control of public highways, streets, etc., within the corporation, and shall cause them to be kept open, in repair and free from nuisance. We see no error in the charge of the court in instructing the jury as it did that the plaintiff had a right to presume that council performed its duty under this section. We see no reason why this Court should reverse the judgment. Judgment affirmed. Cause remanded. GEIGER, PJ., BARNES & HORNBECK, JJ., concur.