#### City of Macon v. Benjamin F. Holcomb.

1. Instructions—Where They State the Law Correctly When Read as One Charge.—Although some instructions in a case may be open to criticism, yet when they state the law applicable to the case substantially correct, when read together as one charge, such imperfections will not be ground for reversal.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1902.

Affirmed.

Opinion filed July 27, 1903.

Redman & Hogan, attorneys for appellant.

Mills & Fitzgerald, attorneys for appellee.

*136Mr. Justice Burroughs

delivered the opinion of the court.

The appellee, Benjamin F. Holcomb, sued the appellant, City of Macon, in the Circuit Court of Macon County, in an action on the case to recover damages for a sprained ankle, alleged to have been the result of a fall caused by a defective sidewalk on a street of the appellant, which its officers negligently failed to keep in a reasonably safe condition.

The appellant pleaded not guilty, and the case was tried by jury and resulted in a verdict and judgment in favor of the appellee for $1,200 damages.

The appellant prosecutes this appeal and to reverse the judgment argues that the Circuit Court ruled improperly on the instructions, and improperly refused to set aside the verdict, which is against the evidence, and, in any event, excessive.

That the appellee was injured as claimed by a fall caused by a defective sidewalk on one of the principal streets of the appellant city, and that his fall occurred at night when he was walking thereon in a reasonably careful manner, is fully shown by the evidence. It also appears that the sidewalk was old and out of repair, and had been so for a long time before the injury was received.

The appellee’s ankle was badly injured and he has suffered severe pain on account thereof, and still suffers pain therefrom and is yet a cripple and likely to so continue for some time to come. Under which circumstances we are unwilling to hold that the verdict is against the evidence or the damages awarded are excessive.

Some of the instructions given by the court are open to some criticism, but when all of them are read together as one charge, they lay down the law applicable to the case substantially correctly, and since the judgment rendered is a proper one when the whole case is fairly considered, we will affirm it.

The foregoing opinion was written by Mr. Justice Benjamin B. Burroughs during his term as justice of this court, and is now adopted as the opinion of this court.

George W. Brown,

Presiding Justice.