The evidence sufficiently sustains the findings of the jury that the sidewalk was out of repair, that the city had constructive notice of the defect and was guilty of culpable negligence in not having'it repaired, and that the injuries to appellee were caused by such defect at a time when she was passing over such sidewalk, and in the exercise of reasonable and ordinary care. The evidence at the trial was somewhat conflicting, but the conflicts in the testimony have been settled by the jury in favor of appellee. There is no just ground for holding the verdict was unauthorized and improper.
It is not here assigned as error that the damages are excessive; nor was it made a point in the written motion for a new trial, filed in the Circuit Court, that the damages assessed by the jury were excessive.
Mo complaint is made of any of the instructions given for appellee. From those given at the instance of appellant, it appears the jury was quite fully and liberally instructed in its behalf. It is claimed that it was error to refuse the instructions “ A,” “ C ” and “ G,” respectively. The first mentioned is somewhat ambiguous, and seems to assume that if plaintiff might have avoided the opening in the sidewalk, then her omission to do so established the fact of a want of ordinary care and caution; but, waiving this and other criticisms that might be suggested in respect to its form, the legal principle upon which it is based is that the plaintiff was not entitled to recover compensation for the injuries received unless she was in the exercise of ordinary care at the time of her fall upon the sidewalk; in other words, that ordinary care on her part was a condition precedent to the right of action. The same doctrine was quite clearly given to the jury in instructions three and four. It was not error to refuse an instruction which was in substance a mere repetition of others that were given.
Instruction “0” was properly refused for the reason it ignored the duty of the city authorities to exercise reasonable care and diligence to ascertain and know the condition of its sidewalks. It imposed too heavy a burden of proof upon appellee, by requiring that the jury should find as a fact that the city had actual notice of the defect in the walk. Constructive notice to the city and its officials was sufficient. Even though the sidewalk in question might have, been repaired and placed in good condition by the city within a year or six months, or one month, or even a shorter space of time, prior to appellee’s fall, and even though the jury had found it would be unreasonable to require the city to overhaul and place in good repair its various sidewalks oftener than once in a year, or six months, or month, as the case may have been, yet, if, as matter of fact, this particular defect had existed for a week or ten days, and the jury believed from the evidence that by the exercise of reasonable care and diligence the municipal authorities could and would have ascertained the existence of such defect and have remedied it before the injury occurred, then the city would be legally liable. Besides this, there was no evidence upon which to base the instruction, as it did not appear from the testimony that the sidewalk on the east side of B Street was ever, prior to appellee’s fall, repaired by the city. The rule announced in refused instruction “Gr” is, that while the city would be responsible for injuries occasioned by its own negligence, yet it would not be liable for any aggravation of the injury caused by the subsequent negligence or misconduct of appellee. The . only aggravation of injury by the latter, suggested either in the instruction or by the testimony, is increased impairment of the use of the arm caused by her failure to exercise it to the extent she could. It would have been well enough to have given this instruction, but as the legal principle contained in it, although expressed in different words, was given in the 7th instruction, we can not say that the action of the court in refusing it was erroneous.
The newly discovered evidence relied upon by appellant was merely cumulative, and was inconclusive in its character. The court, therefore, properly denied a new trial on that ground.
We find no error in the record, and the judgment is affirmed. '
Judgment affirmed.