
    The Smith-Kasson Co. v. Dirr.
    
      (Decided November 23, 1931.)
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr. J. L. Kohl, for plaintiff in error.
    
      Messrs. Kunlcel & Kunkel, for defendant in error.
   Ross, P. J.

This case is brought into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for Freda Dirr, the plaintiff therein, consistent with the general verdict of a jury.

Freda Dirr, an unmarried woman, some thirty-five years of age, and a cripple since infancy, on December 11, 1928, while accompanying her mother on a shopping tour through the city of Cincinnati, fell upon the sidewalk in front of the premises of the plaintiff in error and suffered severe injuries.

Her fall was caused by reason of a crutch, which it was necessary for her to employ in walking, penetrating a hole in the sidewalk made by a “bull’s-eye,” or glass plug, having become dislodged from its proper setting.

The glass plug had been taken away by an employee a short time before. After discovering its dislocation and trying to fix it in the socket, he had thrown it in an ash can and notified some person in authority in the store of plaintiff in error. The defect was repaired shortly after the accident to defendant in error.

There was evidence that the glass plugs were set in their sockets in the sidewalk with a tar compound, and that upon examining the hole, through which the crutch penetrated at the time of the accident, it had been found rusty and dirty.

The expense, suffering, and confinement of the defendant in error consequent upon the injuries incurred by her fall amply justify the amount of the verdict.

It is contended that there was no evidence of negligence on the part of the plaintiff in error, that the motions for an instructed verdict should have been granted, and that the verdict and judgment are against the weight of the evidence.

The record shows that only a short time elapsed from the time of the discovery of the defect until it was repaired, and that the injury to the defendant in error occurred in the interim.

The question whether or not the plaintiff in error, through its employees, used the care which a reasonably prudent person would use under similar circumstances is a question for the jury, and their conclusion will not be disturbed unless it is so manifestly contrary to the conclusion which all reasonable persons would agree was correct as to shock the conscience of the court.

Specifically it is contended that the plaintiff in error was not negligent because the hole was repaired in a reasonable time after discovery, and, therefore, reasonable care was exercised.

A dangerous condition permitted to exist for a very short time may become a nuisance and a constant menace to the safety of those exposed to it. On the other hand, owing to the infrequency and rareness of contact with such a condition, the same situation might not require immediate steps to prevent injury. The time of the day or night might be important factors in determining the promptness necessary to constitute reasonable care.

In the present case the evidence shows that every moment — owing to the holiday season, the noonday period, and the congested character of this portion of the shopping district — many persons were passing and repassing over this spot. The small size of many women’s heels is well known. The use of crutches is not extremely unusual. A doorman was employed by plaintiff in error and was stationed very close to the place where the injuries were incurred. He saw the defect, experimented with the plug, and then threw it away. .Under the circumstances the possibility of imminent injury to pedestrians by reason of the dangerous opening, the possibility of some person catching a heel or crutch in the hole,, were matters for the consideration of the jury, as was the question whether throwing the plug away and notifying other employees was a sufficient exercise of care.

It is perfectly obvious that other measures could have been adopted by the employees of the plaintiff in error, which would have prevented the accident. Whether the failure to use such measures was negligence, was lack of proper care, can be nothing but a question for the jury.

' We find nothing in the verdict to cause us to disagree with it, and the judgment of the court of common pleas of Hamilton county is therefore affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  