Opinion or the court by
JUDGE WHITEAeeieming.
The appellee sought to recover for injuries received by falling on a street of appellant. The defense is a denial of liability because — First, the; place where the injury occurred was not a public street of the city; second, contributory negligence of appellee. On trial, a verdict and judgment for $2,000 was rendered, and, after appellant’s motion for a new trial had been overruled, this appeal is prosecuted.
The question as to whether the street where appellee received her injury was a public highway was submitted to the jury under proper instructions from the court.. There is no complaint as to the instructions on this question. Appellant’s counsel seriously contend that the court should have given a peremptory instruction to find for it on the question of contributory negligence. The facts of the injury proven by appellee herself are that she knew of the defect in the walk, and that it had existed for some time; that on the occasion of the injury appellee'was called to the house of a neighbor, her brother-in-law, in the nighttime, because of the serious illness of a child; that in going to the neighbor’s house she fell into the ditch or low place in the sidewalk, and received the injuries complained of; that when she fell into the ditch or low place she did not have the defect in mind. It is contended that this testimony of appellee herself precludes a recovery, and that a peremptory instruction should have been given. The question of negligence is always a question of a failure to *674use care and caution. Appellee was bound to use the care and caution of an ordinarily prudent person. If she did this, she was not guilty of negligence; if she failed to use this care, she was guilty of negligence. This question of contributory negligence was submitted to the jury, and they were told that, if she was guilty of contributory negligence, she could not recover. Under the circumstances of the injury as proven, we are not clear that the appellee was guilty 'Of contributory negligence at the time she fell and received her injury, and it is fair to presume that the trial judge was not clear that she failed to exercise ordinary care, and1 because of this doubt in hist mind submitted the question to the jury. In this action there was no error.
Where the facts as proven satisfy the mind of the court that the plaintiff failed to use ordinary care, and by such failure contributed to the injury, and that if a verdict was returned in favor of {he plaintiff the court would set it aside and grant a new trial, we think in such case a. peremptory instruction should be given. But, as here, when the court is in doubt as to whether certain acts proven show a failure to use care of an ordinarily prudent person, it is proper to submit the question to a jury. It can not fairly be said as a matter of law that' appellee was guilty of contributory negligence by forgetting for the time the existence of the defect. While this rule has been held in many States, so far. as we are informed it has never been so held in this State. In the case of Vergin v. City of Saginaw (Mich.), 84 N. W., 1075, in a case very similar in the facts to this case, the supreme court of Michigan permitted a recovery. After citing numerous- cases, the court said: “The circuit judge committed no error in submitting the question of plaintiff’s contributory negligence to the *675jury.” In the case of McQuillan v. City of Seattle, 10 Wash., 464, 38 Pac., 1119, another case very similar in facts to this, the supreme court of Washington sáid: “The mere fact that the appellant, McQuillan, was aware of the defective condition of the sidewalk where the accident occurred, is not, per se, conclusive of negligence on his part, though, it was competent evidence on the question of contributory negligence.” Other cases might be cited, but these show the general doctrine.
We think the circumstances surrounding appellee at the time she was injured to be such as properly authorized1 a submission to the jury of the question of contributory negligence. Appellee is called up at a late hour of a cold', dark night, and notified that her brother-in-law’s child is thought to be dying. She dresses, and starts to the bedside of the dying child, and in going along the sidewalk or side of the street where there is a defect, and having in mind the illness of the child, forgets the existence of the hole, and falls into it, and is injured. These facts may well be said to present a debatable question as to what an ordinarily prudent and careful person would have done under the same or similar circumstances, -and, where such doubt exists or reasonably would exist, it is the province of the jury to determine the question of negligence.
An instruction was asked containing this clause: “The fact that, after plaintiff’s injury, defendant ordered a sidewalk to be put thereon by the abutting property owners-, can not be considered by the jury as showing any control thereof taken by the city prior to the injury.” It is insisted that this instruction should have been given. The testimony which this instruction would require the jury to disregard was admitted without objection, and, if improper, should have been objected to when offered.
*676We think the proof clearly shows that Lee street, on which appellee was injured, was a regular accepted street of the city, and had been improved prior to the injury. While it may be true that, 'at the particular place that caused the injury, no improvements had been made, yet the •street had been accepted and improved by the appellant, and, 'having accepted the street as a public highway, it assumed the duty to maintain same throughout its breadth in a reasonably safe condition for travel. Finding no error, the judgment appealed from is affirmed, with damages.
Judge DuRelle dissents.