Concurring Opinion.
Davis, J.In the view I take of the case, if there is any evidence in the record tending to show that the appellee was in the exercise of due care at the time she sustained the injury, the judgment of the trial court should be affirmed, otherwise it will have to be reversed.
The sidewalk was made of second-class, one-inch plank five feet in length, nailed to four stringers. The outside stringers were four inches by four inches. The inside stringers were two inches by four inches. At the time of the accident, and for several months prior planks were loose, and there were some holes in the walk. The sidewalk was constantly used by the traveling public. The appellee knew the condition of the walk, but did not know that the plank would tip up. On the occasion when the appellee was injured, about 7 o’clock in the morning, she was going to church with Miss Lott. They were walking side by side on the walk, the appellee being on the outside. They wer'e both looking for holes in the walk. Miss Lott stepped on a loose plank which she thought was1 nailed, and caused it to come up about two inches, and appellee caught her foot against it and fell down. The only evidence showing that she had the defective condition of the walk in her mind, and that she was paying any *562attention to where she was stepping, is that she was looking for holes in the walk. Whether she was walking slowly or carefully, does not appear. There are no other circumstances showing that she was walking carefully, or that she was using her sense of sight, or that she was paying any attention to where she was stepping. Her companion thought the loose plank on which she stepped, and which caused the1 injury, was nailed, but what the appearance of the plank was,— whether her belief was justified, — is not shown. The only question, therefore, is whether the facts and circumstances shown by the record were such as would justify the inference by the jury that the appellee was in the exercise of due care at the time she was injured.
If there was any evidence that she was walking carefully, and that she was looking for holes and loose boards in the walk, and that she was paying attention to where she was stepping, and that the appearance of the walk at the point where she was injured was such as to lead her to believe that she could, in the exercise of .the care she was using, pass over it in safety, the evidence, in our opinion would be sufficient.
In the absence of any such facts and circumstances, we are constrained to hold that the evidence on the the point under consideration is not sufficient. City of Fort Wayne v. Breese, 123 Ind. 581; City of Bluffton v. McAfee, 12 Ind. App. 490; City of Bloomington v. Rogers, 9 Ind. App. 230.
The case is in many respects similar to City of Fort Wayne v. Breese, supra, with the exception that in that case it was shown that Mrs. Breese was walking slowly and carefully in order to avoid the dangers incident to the defective condition of the sidewalk, and that, at the point where she was injured, the sidewalk looked better and more secure than the points she had *563passed over. There is no evidence in the record showing that the appellee was in fault in going on the defective walk in company with Miss Lott, with knowledge that the walk was out of repair. With full knowledge of its defective condition, she had the right to walk thereon with her companion. She was only required to use ordinary care to avoid injuries which were likely to result from the defects known to her. As before observed, the record, as it comes to us, fails to show the necessary facts and circumstances, relating to her conduct, from which the jury could draw the inference that she was in the exercise of due care at the time she was injured.
Filed February 18, 1896.Therefore, I concur in the conclusion that the judgment should be reversed, with instructions to sustain appellant’s motion for a new trial.