
    INJURY FROM TILTING OF LOOSE BOARD IN SIDEWALK.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Guth.
    Decided, January 18, 1908.
    
      Contributory Negligence — Board Sidewalk in Bad Repair — Action for Injury thereon — Municipal Corporations.
    
    Where the only' contributory negligence which can be imputed to a plaintiff, suing for damages for ah injury, was in using a board sidewalk known to be in bad condition, but at a time when other parts of the street were also unsafe for travel, the issue is one of fact to be determined by the jury under proper instructions by the court, and the finding'of the jury thereon, as implied by the general verdict, will not be lightly disturbed.
    
      Edward M. Ballard, City Solicitor, for plaintiff in error.
    
      Kelley <& Hauck, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   It appears at page 114 of the bill of exceptions that the plaintiff, when she entered upon the defective sidewalk, knew that the boards were loose and liable to tilt when stepped upon, but the testimony also tends to prove that the other parts of the street were in an unsafe condition for travel, and that she could not easily avoid the danger from the boardwalk.

The question of contributory negligence was therefore one of fact to be determined bjr the jury, under proper' instructions from the court. Such instructions were given at the requ'est of the defendant, - and are numbered eight and nine in the bill. Schaefler v. City of Sandusky, 33 O. S., 246; Norwalk v. Tuttle, 73 O. S., 242.

The testimony shows that the plaintiff exercised care commensurate with the known danger; that the accident occurred by reason of her- companion, a boy about sixteen years of age, stepping up5n one of the loose boards ancl causing it to tilt in front of the plaintiff while walking, whereby she'trippéd’and fell to the ground. The only aet therefore, if any, of contributory negligence was in using'the walk when known to be in a dangerous condition, and we are not disposed to disturb the finding of the jury necessarily implied in the general verdict given under proper instructions.

We find no prejudicial error and the judgment will be affirmed.  