Merchants Ice & Cold Storage Co. Bargholt. to fail to see the cake of ice on the sidewalk, when he could have seen it if he had been looking in that direction, or might he, while walking along the sidewalk at a point other than a public crossing, presume that the walk was clear and the way safe, and take notice of objects across the street or passing or overhead, and not be guilty of such contributory negligence as would deny him the right to recover? Negligence is a relative term depending upon the circumstances of each individual case. Facts which would undoubtedly show negligence in one case would not be construed to be such in another. Hence it is peculiarly the province of the jury to determine from the facts in each particular case whether or not one is guilty of negligence; and so in the case at bar it was the duty of the jury, taking into consideration all of the facts, the time of day, the place where the accident occurred, and the surroundings, to say whether or not appellee was exercising ordinary care for his own safety in walking along the sidewalk while he was looking at the Paul Jones building across the street. Might he walk down the sidewalk without keeping his eye upon the ground in front of him in order to observe any obstruction that might be there and not be guilty of negligence? Was he negligent in failing to see the block of ice, almost transparent, lying upon a white, or, at least, light stone pavement? If, as a matter of law he was, then a peremptory instruction should have been given. If not, or if, as above indi cated, it was the province of the jury to determine this question, then the court did not err in permitting them to do so, and in refusing a peremptory instruction. Appellant insists most earnestly that it was entitled to have this instruction given, and cites as supporting its contention in part the opinion of Lord Ellen Merchants Ice & Cold Storage Co. Bargholt. borough in the case of Butterfield v. Forrester, 11 East, 60, wherein he said: "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he dr not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action-an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." The doctrine announced by the learned judge in this opinion is recognized as the correct rule, and has been followed in any number of cases, not only in this but in other courts in this country. But it will be observed in this citation from the opinion. the question at last presents itself as to what is ordinary care, or what amounts to a want of ordinary care on the part of the plaintiff to avoid the injury. This we say, and our courts have held, is to be determined in each case by the facts and circumstances surrounding it, and has been invariably held to be a question for the jury. Appellant also cites the case of Creamer v. West End Street Railway Company, 156 Mass. 320, 31 N. E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456, as supporting this contention; but an examination of that case shows that, while the court recognized the rule that the question of ordinary care is in most instances a question of fact, and hence properly to be left to the jury, still cases would be found where from the undisputed facts the court could see that the plaintiff was not in the exercise of ordinary care, and in such cases the court could prop Merchants Ice & Cold Storage Co. Bargholt. erly instruct the jury to find for the defendant, and the court cited with approval in that case the case of Chaffee v. Boston & L. R. Corp., 104 Mass. 108, in which we find the following sentence: "The question of ordinary care is in most cases, even where the facts are undisputed, a question of fact which it is peculiarly the province of the jury to settle." It is only in that class of cases where the whole evidence introduced by the plaintiff has no tendency to show care on his part, or, on the contrary, shows a want of care, that the duty of the court is to direct a verdict for the defendant. Undoubtedly if appellee saw the cake of ice, and, seeing it, walked against it or fell over it, it would have been the duty of the court to have instructed the jury to find for the defendant; and likewise, if the evidence had shown that appellee's attention had not been distracted at the time, and he had not been looking at the building across the street or at some other object which took his attention and vision from the sidewalk, then a case might have been made out which would have warranted the court in instructing the jury to find for the defendant, though upon this point the decisions are not uniform. In other words, the court will only instruct the jury to find for the defendant when the facts admitted or proven leave no room for doubt that he failed to exercise that degree of care which an ordinarily prudent person would have exercised under like or similar circumstances for his own safety, and this is all that the case of the Ashland Coal & Iron Company v. Wallace, 101 Ky. 637, 19 Ky. Law Rep. 849, 42 S. W. 744, 45 S. W. 207, decided. Many cases involving questions similar to the case at bar have been passed upon by our court, and in those cases it has been held with a degree of uniform Merchants Ice & Cold Storage Co. Bargholt. ity that the correct rule is that, when the court is in doubt as to whether certain acts proven show a failure to use that degree of care which an ordinarily prudent person would have used under similar or like circumstances for his own safety, it is proper to submit the case to the jury. In the case of West Kentucky Telephone Company v. Pharis, 78 S. W. 917, 25 Ky. Law Rep. 1839, appellee was passing over a street at an early hour in the morning on a cloudy day when the ground was covered with snow, which was still falling, when she tripped and fell over a telephone wire and sustained serious injury. On the trial she admitted that she know of the presence of the wire at that point, but stated that she had her mind distracted at the time by reason of the serious sickness of a sister; that she was thinking about her sister at the time, and forgot about the wire, and, failing to notice it, fell over it. This court held that the mere knowledge on the part of appellee of the presence of the wire upon the street was not by itself sufficient to show contributory negligence, though this was a fact for the jury to consider along with the other facts proven as to whether or not she was guilty of negligence. And, in the case of the city of Maysville v. Guilfoyle, 110 Ky. 670, 62 S. W. 493, 23 Ky. L. R. 43, appellee was injured by falling into a low place in the street while going to her brother-in-law's, where his child was sick. It developed during the progress of the trial that appellee knew of the defect in the street. She stated that on account of having the sickness of her brother-in-law's child uppermost in her mind she momentarily forgot about the low place in the street and failed to notice it. A peremptory instruction was asked for and refused, and this court held, upon review here, that the court did not err in so ruling, Merchants Ice & Cold Storage Co. Bargholt. but that it was properly left a question for the jury to determine from all the facts and circumstances whether or not she was guilty of contributory negligence. In each of the cases above cited the plaintiff knew of the existence of the defect or obstruction in the street, but momentarily forgot its presence there because her mind was distracted by reason of the sickness of a member of the family, and the court held in each case that the fact that her mind was so distracted was a circumstance which authorized the submission of the case to the jury, and it was for the jury to determine whether or not under such circumstances she was exercising that degree of care for her own safety, which an ordinarily prudent person would have exercised under like or similar circumstances. The case at bar presents a much stronger reason why the peremptory should have been denied, for the evidence clearly shows that the plaintiff did not discover the presence of the cake of ice on the sidewalk for the reason that his attention was attracted to the structural work of the Paul Jones building then being erected. It is urged for appellant that there was ample room to have walked on either side of the cake of ice, and that the slightest care on his part would have enabled him to avoid the injury; but, as said in the case of the City of Lexington v. Auger, 4 Ky. Law Rep. 23, where the appellee had fallen into a hole, and the city attempted to justify on the ground that there was ample room for appellee to have passed along the street without falling into the hole, had he exercised ordinary care for his own safety, this court, upon review here, said that while this was true, and as a matter of fact appellee had to go somewhat out of his way to fall into the hole, yet he had a right, even though drunk, if he was, to presume that no such dan |