
    Amy McCoy, Appellee, v. The City of Wichita, Appellant.
    
    No. 17,578.
    HEADNOTE BY THE REPORTER.
    1. Contributory Negligence — Defective Sidewalk. It .is not contributory negligence per se for one to walk upon a sidewalk which he knows is defective. In doing so, however, he must exercise such care as an ordinarily prudent man would exercise under similar circumstances.
    2. Defective Sidewalk — Notice to City. The evidence examined, and held sufficient to support the finding that the city had notice of the defective condition of the sidewalk.
    Appeal from Sedgwick district court.
    Opinion filed April 6, 1912.
    Affirmed.
    
      Earl Blake, city attorney, John W. Blood, assistant city attorney, and C. A. McCorkle, for the appellant.
    
      J. A. Brubacher, and James Conly, for the appellee.
   Per Curiam:

There is no finding that the plaintiff was not in the exercise of reasonable care at the time she was injured. The jury find that she had “some knowledge” of the condition of the walk and that there was nothing to prevent her from seeing the condition. She testified that she saw the post lying on the sidewalk and had seen it before, but that she did not see the wire which tripped her and caused her to fall. The jury were not asked to find whether she was in the exercise of reasonable care, or whether her negligence contributed to the injury; nor were they asked to state whether the wire of the fence post of the scantling or the dirt and debris at the embankment where the sidewalk ended caused her to fall. The general verdict must be regarded as a finding that she was in the exercise of reasonable care. Every question presented by the appeal has been heretofore decided adversely to the contentions of the defendant.

“It is not contributory negligence for one to walk upon a defective sidewalk; in doing so, however, he must exercise ordinary care — such care as an ordinarily prudent man would exercise under similar- circumstances.” (Garnett v. Smith, 72 Kan. 664, 665, 83 Pac. 615, and cases cited.)

There is no complaint of the instructions. There was sufficient evidente to support the finding that the city had notice of the defective condition of the walk.

The judgment is affirmed.  