Merchants Ice & Cold Storage Co. Bargholt. the question whether he was proceeding-with due care for his own safety is for the jury, whether the distracting cause was some external object, or the concentration of his mind on some absorbing topic. 4. Same Contributory Negligence.-Plaintiff with a companion was walking along a city sidewalk between 6:30 and 7 o'clock in the morning, when his attention was diverted to a building in process of erection, the character of which he was discussing with his friend, when his foot struck a block of ice directly in his path on the sidewalk, over which he fell and was injured. Plaintiff could have seen the ice, and would have seen it if his attention had not been diverted. Held, that he was not negligent as a matter of law. GIBSON, MARSHALL & GIBSON for appellant. WALTER S. LAPP and LOUIS F. STENERLE for appellee. No briefs. Record out of office. OPINION OF THE COURT BY JUDGE LASSING-Affirm ing. This suit was instituted by appellee against appellant and the trustees of the Norton estate to recover damages for the negligent placing of a block of ice on the sidewalk in front of the Norton building, and suffering and permitting it to remain there in such a manner as to render the sidewalk dangerous to passing pedestrians; that while passing along the street appellee, unaware of the dangerous condition of the street at that point, or that the ice had been left there, fell over and upon said ice and sustained serious injury. A demurrer was sustained to the petition on behalf of the trustees of the Norton estate, and the petition was dismissed as to them. Appellant denied liability, and pleaded contributory negligence. On these issues the case was tried and resulted in a ver Merchants Ice & Cold Storage Co. Bargholt. dict in favor of appellee, to reverse which this appeal is prosecuted. Appellant insists that it was entitled to a peremptory instruction at the close of appellee's testimony, and, if not then, certainly at the close of all the testimony, and that the court erred in refusing to give same; that the verdict is not sustained by the evidence; or is flagrantly against the evidence and is excessive. We will not consider these grounds for reversal in the order in which they naturally occur, for the reason that, in our judgment, the only point which appellant seriously urges is that the jury should have been peremptorily instructed to return a verdict in its favor. There can be no question but what the ice over which appellee fell was placed upon the sidewalk by appellant company. Whether near the curbing, as its employe testifies was his custom and habit to do, or whether it was left at the point at which appellee fell over it, was properly left for the determination of the jury. Appellant did offer evidence tending to show that the ice over which appellee fell was delivered to the Johnson & Morgan Company, tenants to the east, but the janitor of the latter company testifies that on the morning in question the ice for his company was delivered in the doorway, and the witness Ben Pillow, while somewhat shaken in his testimony as to the exact location of the delivery of the ice by the appellant company, states that the ice over which appellant stumbled and fell was taken into the Norton building. It is clear from this testimony, and is not seriously denied, that it was the ice delivered by appellant over which appellee fell. The question as to what point on the pavement it was placed. was the only real question in dispute. The servant of appellant testified that it was placed near the curb Merchants Ice & Cold Storage Co. Bargholt. ing. At the time when appellee fell over it it was near the center of the pavement. About this there is no dispute. As to how it got there the record is silent. No one saw it moved. Four witnesses testify that it was near the center of the pavement when appellee fell over it, and it was the province of the jury to say whether or not its presence at that point was due to the negligence of appellant company. The evidence on this point was certainly sufficient to warrant the submission of the matter to the jury, and they found as in our opinion they must have found, that the ice was placed there by appellant's agent. Whether he carried it and deposited it at that point, or whether he "skated" it across the pavement and it rebounded to that point when it struck the building, is not clear. The incontrovertible fact remains it was there, and appellant was, under the proof, responsible for its presence. The contention that the verdict is excessive is not borne out by the facts. That appellee was painfully and seriously injured there can be no doubt. The physician who treated him has since died, but from the undisputed testimony of appellee himself it is shown that two ribs on his right side were broken; that it was necessary for him to remain five weeks. with his body in straps; that during this time he suf fered intensely; that he spit blood, and that the pain in his right side continued for more than a year; that he had lost flesh, and his health had become seriously impaired; that before the injury he was a strong, active, and robust man; that since the injury he has lost strength, his health is seriously impaired, and it is with difficulty that he can labor. It seems that he fell with his right side across and upon this lump of ice, and it was in this way that he was injured and Merchants Ice & Cold Storage Co. Bargholt. his ribs broken. For the injury which he sustained and the pain and suffering which he endured we are of opinion that the verdict of $1,000 returned by the jury is not unreasonable. This court in a number of cases has upheld larger verdicts for injuries less serious. In the case of the City of Richmond v. Martin, 78 S. W. 219, 25 Ky. Law Rep. 1516, a lady fell into a hole, sprained her leg and bruised her body so that she was confined to her bed for from three to five weeks, though no bones were broken. She recovered a verdict of $1,500, and this court was asked to set it aside on the ground that it was excessive. Although it was not clear that she was injured to the extent which she claimed, yet this court refused to set it aside on the ground that it was excessive. And in the case of Louisville Gas Company v. Page, 86 S. W. 1112, 27 Ky. Law Rep. 885, a woman 60 years old stumbled and fell over a defectively constructed gas box and injured her elbow, for which she recovered a verdict of $2,000. On review here this court refused to set this aside on the ground that it was excessive, it being shown that she had suffered considerably from it from the time of the injury down to the time of the trial, about a year, and in denying appellant's right to a reversal this court said: "In a case like this, where there has been a severe injury and much physical pain and suffering, and there being some evidence from which the jury might conclude that the injury may be permanent, it is difficult, if not impossible, for a jury or a court to determine with exactness the proper compensation. The mere fact that the court would not have fixed the compensation as high as the jury had done is no reason for setting the verdict aside and granting a new trial." And in numerous other cases this court has held that a verdict seemingly large would not be Merchants Ice & Cold Storage Co. Bargholt. disturbed on the ground that it was excessive, where there was evidence tending to show that the injury was serious, and the pain and suffering which accompanied it were severe and were extended through a considerable period of time. Courts are always slow, to disturb the finding of a jury on the ground that it is excessive, in the absence of some evidence tending to show that it was the result of prejudice or passion. In the case at bar there is nothing that warrants such a conclusion. This brings us to a consideration of the question as to whether or not appellant was entitled to a peremptory instruction, for which he asked at the conclusion of appellee's testimony and at the conclusion of all the testimony. The undisputed evidence shows that the accident which resulted in the injury of appellee occurred between 6:30 and 7 o'clock in the morning. As appellee approached the block of ice he could have seen it, as there was nothing in his way to prevent had he been looking at it; but he admits that his attention was attracted to the Paul Jones building, which was being erected on the opposite side of the street, and that with a friend he was discussing the wonderful growth of the city during the last few years, and they were commenting upon the appearance of the Paul Jones building and how it could have been improved had its owner acquired the adjacent vacant lot and made it extend over said lot, and that while his arm was extended in the direction of the Paul Jones building about which they were talking his foot struck the cake of ice in question, over which he fell and was injured. For appellant it is urged that this is conclusive evidence of such negligence on his part that he should be denied a right to recover. This is the question in the case. Was it negligence for him vol. 129-5 |