
    INJURY FROM STEPPING INTO A HOLE IN THE STREET.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Effie V. Ryan.
    Decided, February 11, 1911.
    
      Municipal Corporations — Care in Keeping Streets in Remonably Safe Condition — Woman Steps from Street Car Into a Hole — Negligence —Charge of Court.
    
    1. Where the evidence tends to show that a passenger in alighting from a street car could by looking have seen a hole in the street and have avoided stepping into it, a refusal to give a special instruction to the jury, directed to that phase of the case and requested before argument, is prejudicial error.
    2. It is not error to refuse to give judgment for the defendant, where the jury failed to answer an interrogatory as to whether the street was in reasonable safe condition, but did find that the city had constructive notice of a defect in the street.
    3. But a general verdict for the plaintiff in such a case is not sustained by sufficient evidence, where the evidence seems to bear out the theory that plaintiff stepped heedlessly from the car and unnecessarily used a part of the street not intended for pedestrians.
    
      Constant Southworth, for plaintiff in error.
    
      Thos. L. Michie, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   Tbe plaintiff in the original action, Effie Y. Ryan, was injured by stepping from a summer streét ear into a hole in the street at the corner of Sixth and Walnut streets, Cincinnati, Ohio. The evidence tends to prove that she did not look where she was stepping, and that by looking she could, although in the night season, have seen the hole in the street and easily avoided stepping in it.

Special instruction No. 4 requested by the defendant was addressed to this state of facts and its refusal by the court was error which was specially prejudicial because requested to be given before argument to the jury, and no like instruction was given in the general charge. The Village of Conneaut v. Naef, 54 O. S., 529.

The evidence tended to prove also that by taking one step to the right on the running board of the car she could have stepped down on the flag crossing intended for pedestrians and avoided all danger from the hole, which was nine inches west of the crossing. Under such circumstances special instruction No. 5 was pertinent, and its refusal was error. The City of Dayton v. Taylor’s Admr., 62 O. S., 11.

The record discloses the following interrogatories and answers of .the jury:

No. 3. “Was the street at the point and time when and where plaintiff claims to have been injured, plainly visible by reason of the street and store lights burning at the time in question to a person using the street, and using ordinary care to discover defects in the street? Answer. No.”
No. 4. “Was the depression in question in full view of plaintiff if she had looked where she was stepping in getting off the car, and could plaintiff by looking have easily seen and avoided it? Answer. Can’t answer.”

It will be noticed that the observer in the first interrogatory is not located at any particular point in the street, hence the jury might well say that the street at the place of the accident was not plainly visible to such person. To the second interrogatory, which is directed to the particular defect in the street and to the act of .plaintiff in getting off the car without looking, the jury say “Can’t'answer.” Such indefinite answer is in legal effect a denial of the existence of such facts, and operates against tire party whose ease needs their support. Railroad Co. v. Swarts, 68 Kansas, 235.

It was not necessary to allege in the petition or prove that the injury was caused without the fault or neglgience of the plaintiff. Street Railroad Co. v. Nolthenius, 40 O. S., 376.

Hence it was the defendant and not the plaintiff who needed the support of the facts embraced in this interrogatory and the answer operated against it-

No. 8. “Was the street at the time when and place where the plaintiff' .claims to have been injured in a reasonably safe condition for travel in the ordinary mode? Answer. Can’t answer.”

Such answer must be construed as a denial of the existence of such facts, and necessarily operates against the defendant. The jury also specially found that the-city had constructive notice of the defect in the street and we think the evidence supports the finding. It is manifest therefore that the court did not err in refusing to render judgment for the defendant upon the special findings. They tend to show, however, in the light of the evidence, that the jury did more or less guessing in rendering a general verdict for the plaintiff, for'it seems quite clear to us that she heedlessly stepped down from the car without looking and had she done so would have seen the hole and avoided injury — that she unnecessarily used a part of the street not intended for pedestrians and could, by using the flag crossing about a foot to her right, have alighted in safety.

The judgment will be reversed because not sustained by sufficient evidence and for error in refusing special instructions Nos. 4 and 5. The cause will be remanded for a new trial.  