
    Cline, Sr. v. Cook.
    (Decided November 9, 1926.)
    Appeal from McCracken Circuit Court.
    1. Automobiles. — Verdict for defendant automobile driver held not against evidence on issue -of negligence as to pedestrian coming in contact with side of car.
    2. 'Evidence. — Court does not take judicial notice of city ordinances.
    3. Trial.- — Failing to instruct that ordinance required automobilist to stop as he approached boulevard was- not error, where ordinance was not proved nor -called to attention of court nor instruction asked, in view of Kentucky Statutes, section 3062.
    EDGAR T. WASHBURN for appellant.
    GRA-SSHAM & ALEXANDER for appellee.
   Opinion op the Court by

Commissioner Hobson—

Affirming.

W. H. Cline, Sr., wlio was eighty-two years old, while -crossing Third street in the city of Padncah on July 4,1925, was knocked down by an automobile driven by G-. É. Cook. In the fall Cline’s arm was broken and he was otherwise bruised. He brought this suit to recover for his injury against 'Cook. The jury, to whom the case was submitted, found for the defendant. The plaintiff appeals.

Third street runs north and south; Broadway runs east and west. The National Bank building is at the southwest corner of Third and Broadway; the Savings Bank -building is on the southeast corner, or on the opposite side of Third street. Cline was at the National Bank building and -started across to the Savings Bank building. According to the proof for him, as he got within two or three steps from the Savings Bank curb, Cook, going towards Broadway, came brushing through there without stopping and struck him and knocked him to the curb.

According to the proof for the defendant he was running his car under five miles an hour. Cline was not in front of him or in sight of him as he approached and the accident happened in this way: There were a number of people standing on the comer at the savings bank, some standing on the sidewalk and others on the curb- and in the street. When Cline reached these people he could not get through the crowd. He walked around to one side and as he turned around he brushed against the automobile and the automobile brushed him down. In other words, the front of the automobile passed him while he was trying to get through the crowd and as he turned to find another place to get through the crowd he came in contact with the passing car.

While the evidence is conflicting, it cannot be said that the verdict of the jury is palpably against the evidence. The chief ground for reversal is that the court misinstructed the jury. The instructions are as follows:

“It was the duty of the defendant, at the time and place mentioned in the evidence, to have his car under reasonable control and to keep a lookout ahead for persons and vehicles using the street, including the plaintiff, and to exercise ordinary care generally to prevent striking and injuring such persons or vehicles upon the highway, and if you shall believe from the evidence in this case that the defendant failed to do either of these things and by reason of such failure on his part and as the direct' and proximate result thereof, his said automobile was caused to strike the plaintiff, and .plaintiff received the injuries complained of, then the law is for the plaintiff and you will so find, but unless you shall so believe from the evidence, then the law is for the defendant and you will so find.
“It was likewise the duty of the plaintiff at the time and place mentioned in the evidence to keep a lookout ahead for vehicles and persons using the street, and to exercise. ordinary care generally for his own safety, and if you shall believe from the evidence in this case that he' failed to do either of these things and by_,reas'on of such failure he helped to cause or bring about the accident complained of and the injuries which he received, and but for which failure he would not have been struck and injured, then the law -is for the defendant, and you will so find, although you may believe from the evidence that the defendant was also negligent.”

These instructions, so far as they go, aptly cover the case; but it is insisted that Broadway is by the ordinance of the city of Paducah a boulevard and that under the ordinance it was the duty of Cook to stop his car as he approached Broadway, and that the court erred in failing to so instruct the jury.

’ Kentucky Statutes, section 3062, provides how municipal ordinances in cities of the second class may be proved. No proof was offered on the trial of the city ordinance; the courts do not take judicial knowledge of such ordinances. The ordinance was not called to the attention of the court in any way. No instruction was asked upon it.

Judgment affirmed.  