the bank would impute knowledge to it which he possessed only upon reasonable presumption that he would divulge to it his knowledge. His dual position renders it more probable that he would not have disclosed his knowledge in this instance. His personal interest was contrary to that of the bank; he was actually deceiving it, it seems, in the transaction. But whether he was actively misleading the bank or not, it is contrary to probability that he would have divulged to it matter within his knowledge which if divulged would have prevented the consummation of his transaction with it. Therefore, the presumption does not obtain that he did impart his knowledge to the bank. Presumptions of a fact are based upon probabilities, not improbabilities.

Judgment affirmed.

City of Louisville v. Uebelhor.

(Decided February 8, 1911.)

Appeal from Jefferson Circuit Court
(Common Pleas Branch, Second Division).

1. Municipal Corporations Street Crossings-Unsafe ConditionInjury to Pedestrian-Burden of Proof.-Appellee sued the City of Louisville for damages for personal injury caused, as alleged, by falling on a street crossing that was in an unsafe condition. Held, that the city does not insure the safety of its streets, and it is not reasonable to place upon it the burden of maintaining at all times every street crossing and side walk in a perfect condition. It is only required to be reasonably safe for use as a footway for pedestrians. That which is customary may be regarded as ordinarily safe, and that is the standard.

2. Evidence-Continuity of Conditions-Relevancy.-Evidence tending to show a continuity of conditions from the time of the injury to that of the suit, and the evidence of the exact conditions at the time of the suit was relevant as tending to prove the exact condition at the time of the injury.

LEON P. LEWIS, CLAYTON B. BLAKEY and HUSTON QUIN for appellant.

J. J. KAVANAUGH for appellee.

OPINION OF THE COURT BY JUDGE O'REAR-Reversing.

Appellee sued the city of Louisville for damages for her personal injury, caused, it is alleged, by her falling

on a street crossing at Preston and Market streets in Louisville. She claims there was a hole or depression in the stones constituting the crossing, and as she alighted from a street car at night she stepped in the hole, lost her balance and fell, severely spraining an ankle. The issue tried out was whether the hole or depression was 'such as constituted an unsafe state of the crossing. The crossing was made of large flat stones laid end to end. Wagons passing over them had worn away two of the stones at their joints making a concave depression from one or one and a half inches to four or five inches deep. That is, the evidence of the plaintiff showed that it was four or five inches deep, while the evidence of the city showed the former. If it was as much as the latter, it was a question for the jury whether that was such a condition as was not reasonably safe for a street crossing. If it was only an inch and a half or two inches,a smooth worn place in the stones it would not be in such a condition as indicates neglect of the crossing by the city. The city does not insure the safety of its streets, and it is not reasonable to place upon it the burden of maintaining at all times and under hazard every street crossing and sidewalk in a perfect condition. It is only required to be reasonably safe for use as a foot way for pedestrians. There must be some point short of perfection, therefore, that is not actionable negligence. We know as a matter of common knowledge that such depressions in a street as slight unevenness, caused by wear, of an inch or so are quite common in all cities. That which is so customary may be regarded as ordinarily safe, and that is the standard. It was, then, a very material question in this case as to the extent of the depression.

The accident occurred in August, 1907. The suit was begun in January, 1908. The trial was had October, 1909. The defendant offered to show that the same crossing was in existence when the suit was tried, without repair or material change; if there had occurred any change the depression would show some increase. The purpose of the evidence was to admit measurements of the depression as of the date of the trial, and perhaps to have the jury view the place. But the trial court rejected the offered testimony on the ground that the period of comparison was too remote from that of the accident. The lapse of time was of itself alone not so material. depends on the nature of the thing to be described, and the conditions to which it has been subjected in the mean

It

time. Stone such as that crossing was made of was as little subject to change as anything fitted for such use well could be. At any rate, when it was offered to show that it was in substantially the same condition as it was when the injury occurred, it was competent to then show its present condition. The purpose of all the evidence being to place before the eyes of the jury the identical situation at the time of the incident in controversy, that which is the most reliable ought to be given preference. Witnesses detailing the event as they saw it a year or two before are apt to forget, or their views may be exaggerated. If the hole or depression were measured, and its exact proportions given to the jury, or if they themselves had looked at it, it must be conceded that such evidence is of a more convincing character than statements of witnesses long afterward based upon estimates made from casual observation, no matter how honest the witnesses might be. The evidence, tending to show a continuity of conditions from the time of the injury to that of the suit, and then evidence of the exact conditions at the time of the suit, was relevant and receivable as tending to prove the exact condition at the time of the injury. (Wigmore Ev., section 347; Dean v. Shannon, 72 Conn., 667; Hunt v. Dubuque, 96 Iowa, 314; Jacksonville, Etc., R. R. v. Southworth, 135 Ill., 250; 25 N. E., 1093; Alsop v. Adams, 10 Ky. Law Rep., 362.) The ruling of the court rejecting the offered evidence was prejudicial

error.

Instructions offered by the defendant were objectionable in that they were academic discussions of the law, and even though correct, should not have been given to the jury. They were argumentative, in addition. instructions given by the court were proper. Reversed, and remanded for a new trial.

1.

2.

Doody, et al. v. Bowman, et al.

(Decided February 9, 1911.)

Appeal from Marion Circuit Court.

The

Intoxicating Liquors Local Option Contest.-Where the petition for a local option election is filed on the same day that the order calling the election is made, the election will be void.

Notice of Contest. If a statement of the grounds of contest is filed with the county clerk within ten days after the election, and a copy thereof delivered to the county judge, and a notice that

3.

the grounds of contest have been so filed is published in the manner provided in section 2566 of the Kentucky Statutes, it will be sufficient.

Estoppel of Contestants.-Persons who participate in a local option election are not estopped to contest it.

FINLEY SHUCK and BEN SPALDING for appellants.

LAFE S. PENCE, H. W. RIVES and JOHN R. THOMAS for appellees.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming.

In this local option case the ground of contest was that the order calling the election was made on the same day that the petition was filed. Section 2554 of the Kentucky Statutes, provides that:

"Upon application, by written petition, signed by a number of legal voters in each precinct of the territory to be affected, equal to twenty-five per cent. of the votes cast in each of said precincts at the last preceding general election, * * it shall be the duty of the judge of the county court in such county, at the next regular term thereof after receiving said petition, to make an order on his order-book, directing an election to be held

In Wilson v. Hines, 99 Ky., 221, which was also a local option contest, the petition was filed on the same day that the order directing the election to be held was made, and it was held that the order calling the election was unauthorized and void, the court saying:

"In our opinion it was intended that the petition should be received in court, and there made a matter of record by the proper order entered on the order book, showing that it has been received and filed and the purpose of it, and that the order for the election should be made at the next regular term of the court thereafter."

And this case was followed in Cress v. Commonwealth, 18 Ky. Law Rep., 633; Smith v. Patton, 103 Ky., 444.

In Locke v. Commonwealth, 113 Ky., 864, the petition was not filed in court at a term preceding the one at which the election was ordered, and the court said:

"The petition not having been properly filed, and the county judge having no authority to order the election, it was void."

In view of these decisions it is manifest that if they are permitted to stand, the election must be held void.

rule

Counsel criticise the construction placed on the statute in the cases mentioned, but they have been too long adhered to to justify us in departing from the announced. The observence of it does not work any hardship or impose any unreasonable duty upon petitioners who desired to call an election. It is just as easy and convenient to file the petition at a regular, or a special term, as it was held in Smith v. Patton, supra, might be done, and have the election ordered at the next regular term, as it is to file the petition on the same day upon which the order calling the election is made.

But counsel insist that the notice given of the contest was not sufficient. The election was held on August 11, 1910, and on August 16th more than ten persons, citizens of and legal voters in the territory in which the election was held, filed in the office of the county clerk a notice signed by them, stating that:

"The undersigned citizens and legal voters of the city of Lebanon, Kentucky, in which an election was held on the 11th day of August, 1910, on the question of whether or not intoxicating liquors should be sold in said city, and in which election a majority of the votes as counted by the canvassing board have been counted in favor of the sale of such liquors, now protest against the issuance or recording of any certificate, and contest the result of said pretended election upon the following grounds, viz.: First, because it is shown by the records. of the Marion county court that the petition for said election was filed on the 6th day of June, 1910, a regular term of the Marion county court, and on the same day and in the same order the said election was ordered by said court to be held on August 11th, 1910, and no other order of court filing said petition or ordering said election was made or entered at any regular or special term of said court, and for said reason the said pretended election was and is absolutely void and of no effect, and no vote cast thereat should be counted as a legal vote, and no certificate of such result can be received or legally recorded."

On the same day, a copy of this notice was delivered to the judge of the Marion county court. On August 20th, 1910, the following notice was delivered to the county judge:

"To Whom it May Concern:

"Notice is hereby given that B. F. Bowman, and others (giving their names) on August 16th, 1910, filed