
    The City of Jewell City v. Mrs. A. Van Meter.
    No. 13,859.
    (79 Pac. 149.)
    Error from Jewell district court; Richard M. Pickler, judge.
    Opinion filed January 7, 1905.
    Affirmed.
    
      Robert C. Postlethwaite, and J. G. Postlethwaite, for plaintiff in error.
    
      P. P. Hotchkiss, and R. M. McBride, for defendant in error.
   Per Guriam:

The city prosecutes error from a judgment obtained against it by Mrs. A. Yan Meter for injuries she sustained by falling on a defective sidewalk. The alleged errors are: That improper evidence was admitted; that the court refused to give a certain instruction; that the verdict is not supported by the evidence; and that judgment should have been rendered for the defendant.

The admission of the evidence of which complaint is made was in response to a question asked plaintiff concerning her mental condition since the injury. This question was improper, as there were no allegations in the petition under which such damages could have been allowed. However, the plaintiff’s answer to this question referred exclusively to her physical condition. The answer was therefore within the issues, and not prejudicial.

Complaint is made of the admission of the testimony of H. C. White, jr., city clerk, which tended to show that the plaintiff had presented her claim for damages to the city council before she commenced her action, and that it had been disallowed. This evidence was material, and the witness was competent to testify.

The instruction asked and refused does not correctly state the degree of care the plaintiff was required to exercise. It states that if she were guilty of the slightest degree of negligence she could not recover. The slightest degree of negligence is a neglect to exercise the highest degree of care. A traveler on a public street is not required to exercise the highest degree of care. In the absence of knowledge that a dangerous place exists such person is only required to exercise ordinary care; that is, such care as an ordinarily prudent person would exercise under similar circumstances and conditions.

The judgment is affirmed.  