Stowers v. Singer. tions can be answered in the affirmative, it is not perceived that she was 'seduced.' To hold otherwise would be to break down all distinctions between the virtuous and vicious, and to place the common bawd on the same plane with the virtuous woman, whose life was pure, and whose confidence had been betrayed by the heartless libertine." The conclusion thus stated is, we think, supported by abundant authority. We conclude, therefore, that the word "seduction," when applied to the conduct of a man towards a woman, means the use of some influence, artifice, promise or means on his part, by which he induces the woman, who is then, and has theretofore for a reasonable time been, a woman of chaste conduct, to submit to unlawful intercourse with him. To this may be added, if the evidence justifies it, a statement that proof of former unchastity may be considered in mitigation of damages, and to show that the sexual intercourse was without enticement, artifice, persuasion or solicitation, but is not of itself a defense if the plaintiff had, for a reasonable time before the alleged seduction been leading a virtuous life. Baird v. Boehner, 72 Iowa, 318, 33 N. W., 694; Bell v. Rinker, 29 Ind., 267; Smith v. Milburn, 17 Iowa, 30; Love v. Masoner, 6 Baxt., 24, 32 Am. Rep., 522; Hogan v. Cregan, 6 Rob. (N. Y.), 138; White v. Murtland, 71 Ill., 250, 22 Am. Rep., 100; Drish v. Davenport, 2 Stew., 266; Breon v. Henkle, 14 Or., 494, 13 Pac., 289. In the view of the conclusion we have reached, it becomes unnecessary to consider the other grounds for a new trial. The former opinion is withdrawn, and the judgment is reversed, and cause remanded, with directions to award appellant a new trial, and for further proceedings consistent herewith. Whole court sitting. City of Covington v. Manwaring. CASE 73-ACTION TO RECOVER DAMAGES FOR PERSONAL INJURIES. JUNE City of Covington v. Manwaring. APPEAL FROM KENTON CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED. MUNICIPAL CORPORATIONS-INJURY FROM DEFECT IN SIDEWALK-NoTICE TO PLAINTIFF OF DEFECT. Held: 1. Where plaintiff had worked in a store for five or six months, and it was a part of his business to sweep off the sidewalk in front of the store, he was charged with notice of the fact that the walk had become uneven and his statement that he did not know that the bricks were raised, or the pavement was in a bad condition, must be taken as meaning that he had never thought of the pavement as dangerous. 2. A city is only required to use proper care to see that its sidewalks are reasonably safe for persons exercising ordinary care and prudence; and, therefore, where one who was charged with notice that some of the bricks in a sidewalk had been raised by the roots of a tree stumbled against the raised bricks in daylight, from inadvertence, the city was not liable for the injury resulting. F. J. HANTON, FOR APPELLANT. W. McD. SHAW, FOR APPELLEE. (No briefs in the record.) OPINION OF THE COURT BY JUDGE HOBSON-REVERSING. Appellee, Manwaring, instituted this action to recover of the appellant, the city of Covington, damages for a persona! injury received by him while passing along the sidewalk on the east side of Greenup street; alleging that it was caused by the negligence of the city in allowing the sidewalk to be in a dangerous condition. On the trial of the case, a verdict and judgment were rendered in his faver for $500, and the defendant appeals. City of Covington v. Manwaring. The plaintiff, at the time of the injury, was about 19 years of age, and had worked for 5 or 6 months in a grocery store fronting on Greenup street. A large tree stood on the sidewalk just on the property line of this store lot, and a few feet beyond this tree from the store sat a barrel on the curb, in which were put ashes. The sidewalk was perhaps 15 feet wide. About ten feet of it next to the fence was in excellent condition, and here was where most of the travel went. Around the tree the roots had raised the bricks in places, making them uneven. Some of the bricks were raised in this way from one-half inch to an inch, or something over. The plaintiff's main business was delivering the goods from the grocery, but he also swept out the store, swept off the sidewalk, and put ashes into the barrel at times. He says he did this about once a week. His employer says he did it four or five times a week. At the time he was injured, he was going from the store to the ash barrel with some ashes in a dustpan to empty into it, holding the pan in front of him. As he passed along by the tree he struck his toe against one of the bricks that were raised, and fell upon the pavement with his knee in such a manner as to inflict a serious injury on the kneejoint. The injury occurred at 2 o'clock in the afternoon, and, of course, if he had looked, he could have seen the condition of the bricks, and avoided falling over them. He testifies that he did not know that the bricks were raised or the pavement in a bad condition; but as he had worked in this store five or six months, and it was part of his business to sweep off the sidewalk in front of it, which ran up to the tree on the side next to the store, he must be charged with knowledge of the condition of the pavement, and we must take his statement as meaning that he had never thought of the pavement as Vol. 113-38 1 City of Covington v. Manwaring. dangerous, or anticipated that he might fall over it as he did. For it is entirely incredible that one who had been about this store as long as he had, and had swept off the pavement as often as he had, could have failed to observe the effect of the roots of this tree on the brick. It was a large tree, and there was nothing to prevent his seeing the condition of the pavement, which was such as is not uncommon under such circumstances. The question then arises, is such a condition of a pavement in a city a ground of recovery against the city, in favor of one who has notice, or must be charged with notice, of its condition, and in daylight stumbles over it from inadvertence? In Town of Gosport v. Evans, 112 Ind., 134, 13 N. E., 256, 2 Am. St. Rep., 164, the court said: "While a municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in a reasonably safe condition for public travel by night as well as by day, it is by no means an insurer against accidents; nor can it be expected to maintain the surface of its sidewalks free from all inequalities, and from every possible obstruction to mere convenient · travel. A contrary rule would or might burden municipal corporations beyond endurance. That a pavement may have become uneven from use, or that bricks therein may have become loose or displaced by the action of the elements, so that persons are liable to stumble or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the sidewalk." This is in accordance with the rule laid down in Dillon on Municipal Corporations: "The law does not require a municipal corporation to respond in damages City of Covington v. Manwaring. for every injury that may be received on a public street. The corporation is not required to have its streets or sidewalks so constructed as to secure absolute immunity from danger in using them, nor is it bound to employ the utmost care and exertion to that end. Its duty, generally stated, is only to use due and proper care to see that its sidewalks are reasonably safe for persons exercising ordinary care and prudence." Section 1006, Dill. Mun. Corp. "Adverting in this place to the subject in a general way, it may be stated that if the person injured knew of the defect or obstruction, and ought reasonably to have avoided it by going outside or around it, and he did not, he can not recover." Section 1007, Id. In Nicholas v. Peck, 20 R. I 533, 40 Atl., 418, the plaintiff, in daylight, struck her foot against a stone projecting above the surface of the pavement, when she knew the condition of the pavement. It was held she could not recover. The court said: "In these circumstances, the necessary inference is that she stumbled over the stones because she was not looking for them, as she was bound to do if they were dangerous, and she knew of the danger. Though ordinarily the question of contributory negligence is for the jury, we think the plaintiff's negligence is sufficiently clear for the court to hold that she was negligent as a matter of law." In City of Richmond v. Courtney, 32 Grat., 792, where the injury occurred from loose bricks lying around, over which the plaintiff stumbled and fell in daylight, a recovery was likewise refused. The court said: "It is not to be expected, and ought not to be required, that a city should keep its streets at perfect level and even surface. Slight obstructions, produced by loose bricks in the pavement, or by the roots of trees which may displace the pavement from the very nature of things, can not be prevented. And so there |