Kneale v. Dukate

Whitfield, C. J., delivered the opinion of the court. There is a fatal error running throughout the instructions for the defendants, to the effect that, unless the defendants had actual knowledge of the dangerous condition of the premises, the jury should find for the defendants. This is not the law. If the defendants knew, or by the exercise of reasonable diligence ought to have known, in either case the plaintiff would be entitled to recover so far as this proposition is concerned. This error appears in the third, fourth, sixth, seventh, tenth, and thirteenth instructions given for the defendants. Appearing in all these ’instructions in the most positive terms, it amounts to fatal error. The third instruction is erroneous, because there is no evidence in the record that the foreman, Covacevieh, had thrown this particular piece of wood upon the floor of the building the day preceding the accident. That is a pure assumption, unwarranted by the record. We do not pass upon any other assignments of error than those involved in these remarks. The judgment is reversed, and the cause remanded.