#### Breckman v. City of Covington.

(Decided May 2, 1911.)

Appeal from Kenton Circuit Court. (Grim. C. L. & E. Division.)

Municipalities — 'Dangerous Side-walks — (Liability oi 'City for Injury to One Falling Tbereon When Wet — Held, under the testimony in this case, we .cannot say that the walk in question was obviously dangerous. All .such .sidewalks' are more or less dangerous when wet, but that is not a condition which would render a city liable in damages to -persons who fall thereon' and injure themselves.

SHAW & WlAKiE for appellant.

*445J'O'HiNi E. .SHEPARD for appellees.

OpinioN op the Court by

Jume Nunn

Affirming.

Appellant, Sue J. Breckman, a lady fifty years of age, slipped and fell on a concrete side walk in the City of Covington at Third and Bussell streets. She charged in her petition that the walk at the place she fell was not reasonably safe for travelers; that when within one and eight-tenths feet of some stone steps which lead into a grocery store, it then had and was so constructing, a slope of three and one-half inches, which rendered the place dangerous and unsafe for pedestrians. She alleged that while she was leaving the store she fell on this place breaking and mangling her ankle joint, permanently injuring her. There is no dispute as to her injuries. The evidence fully supported her pleading, as to the slope in the walk. At the close of the testimony the court gave a peremptory instruction in favor of appellee, and it is the propriety of this action that this appeal appellee questions. The city passed an ordinance for the improvement of the sidewalk at this point with cement, and it was in the construction of it that this slope or incline was made in front of the steps as described by appellant in her petition. The contractor could have prevented this incline by lowering the steps and raising the pavement at the curbing, but he did not do either of these things and had'to bring the cement up to the slope mentioned to meet the steps. The pavement was wet at the time appellant fell, as it had been raining, which rendered it more dangerous.

Appellee claimed that it was not liable to appellant for damages because the walk was originally constructed as it was at the time she received her fall and injuries. There is no claim that the walk was out of repair or that the city was negligent in maintaining it. It matters not that the pavement was placed in that condition by original construction, if the city adopted a plan for the improvement of that street which was obviously dangeous to travelers, and a person was injured thereon, the city would be liable. See the cases of Clay City v. Abner, 26 Ky. L. R., 603; Teager v. City of Flemingsburg, 22 Ky. L. R., 1442; 109 Ky., 746, and City of Louisville v. Norris, 111 Ky., 905. In the case last cited, the court said:

> *446“If the plan adopted is palpably bad, it will not excuse tbe city from resulting damages to private property to show that tbe execution of tbe plan was skillful.”

In tbe case of Carroll’s Admr. v. City of Louisville, 117 Ky., 758, this court used this language:

> “While it is tbe duty of tbe city to keep its streets in a reasonably safe condition for ordinary travel, a corresponding duty rests on those who legitimately use the streets to avoid being injured. Tbe rule is admirably stated in Dillon on Municipal Corporations (section 1015) as follows: ‘The liability is not that of guarantor of tbe safety of the traveler. Tbe corporate authorities are only bound to use reasonable skill and diligence in mak- ■ ing tbe streets and sidewalks safe and convenient for travel. It is under no obligation 'to provide for everything that may happen upon them, but only such things &s ordinarily exist, or such as may be reasonably expected to occur.’ ”

In tbe case of Clay City v. Abner, supra, the court’ said:

> ‘ ‘ Tbe town is not liable in damages for accidents that may occur on tbe highway, because tbe very best plan or even a better one in the view of the jury, was not adopted. A municipality is in no sense a guarantor of tbe safety of tbe traveler upon its highways. Tbe corporate authority is only bound to use reasonable skill and diligence in making tbe streets and sidewalks safe and convenient for traveling. ’ ’

Under tbe testimony in the case at bar, we cannot say that tbe walk was obviously dangerous. All such sidewalks are more or less dangerous when Avet, but that is not a condition which would render a city liable in damages to persons who fall thereon and injure themselves.

After considering tbe evidence, tbe lower court arrived at tbe conclusion that it could not, as a matter of law, say that tbe plan of construction of tbe sidewalk was dangerous and unsafe, and we are not willing to disturb tbe finding.

For these reasons,- tbe judgment of tbe lower court is affirmed.