May term, 1909, an amended answer was filed in which it was stated that before the warrant was caused to issue for appellant's arrest, appellee advised with R. E. Robertson and stated all the facts to him and asked him whether or not any proceedings should be instituted, and the attorney advised him that such facts constituted probable cause and authorized the making of an affidavit upon which to issue a warrant of arrest and advised him that it was his duty to swear to and sign the affidavit for procuring the warrant. He alleged that he did not know at the time he filed his original answer that it was material to advise his present attorney of these facts and did not until the day of the filing of the amendment. The issues were completed and a trial had which resulted in a verdict and judgment for appellee.

Appellant asks a reversal for several alleged errors. One is that the verdict is flagrantly against the evidence. Appellant's testimony shows pretty conclusively that he did not break into this office or steal anything therefrom. Appellee's testimony was, in substance, that he left the office promptly at six o'clock p. m.; that he locked the door when he left; that he went to his supper, stopped several minutes at a barbershop on his return; that he returned to his office at seven o'clock p. m.; that he found the drivers of the express companies there when he arrived; that they had just reached the place and found the door open, a few coppers on the floor and a sack of pepper which had been scattered over the floor. Appellee stated that as soon as he entered the office he went to the safe, found the door closed but not locked, and discovered that the money and check were missing. One of the drivers stated to him that a few hours before he had heard appellant say that he was broke; that he had no money, but that he was going to have $40.00 to buy a suit of clothes with and $50.00 to spend Christmas. Appellee was informed that one Gains, an editor of a newspaper in Georgetown, was seated near a window of his office in the Wellington hotel; that shortly after six that evening he saw a man dressed in a long dark coat and a slouch hat walking very fast or running from the express office; that the man was about five feet and seven or eight inches high. Appellee further testified that on Sunday morning after the office was broken into he received information from one or two persons that appellant displayed a roll of bills and a check in the lobby of

the Wellington hotel that morning. Appellant went to Lexington that Sunday about noon and it appears that appellee got Stockdell, a constable, to shadow him while there. Stockdell reported to appellee that appellant visited some saloons, crap games and houses of ill repute while there and displayed a roll of bills and a check.

It seems that Stockdell visited the county attorney's office on the following Monday for the purpose of obtaining a warrant of arrest for appellant, and the attorney advised him that it was necessary for Nolen to make the affidavit and sent Stockdell after him and Nolen went to county attorney's office and made the affidavit which was prepared by the attorney, swore to it before the county judge, and the warrant was issued. Appellee testified that he had no enmity towards or ill feelings against appellant, but that he then believed from the facts within his knowledge that appellant had committed the offense.

It was not necessary for appellee to establish the guilt of appellant to succeed in his defense to the action. If he had probable cause to and did believe from all the facts within his knowledge, that appellant committed the crime and such knowledge was based upon sufficient evidence to lead a person of ordinary judgment and reasonable discretion to believe that appellant committed The crime, then he should be excused for making the affidavit and causing the warrant of arrest to be issued. This question was submitted to the jury in apt language.

Appellant admitted that he had no money on Saturday evening, but it was shown without contradiction that he was engagad in a crap game in a certain room in the hotel from nine o'clock that night until four o'clock the next morning; that he won about $30.00 in the game; that about nine o'clock that night a certain person gave him a check for $10.00 which he held until after the examining trial. It also appears that he gave a check that ight for $2.00 with which to enter the crap game. While this was an illegal method of obtaining money, it is shown by the testimony that he obtained it in that manner, and this was the roll of money exhibited in the presence of the two persons on Sunday morning in the lobby of the hotel and also in Lexington. There is not the slightest testimony, however, showing that appellee had an intimation of the manner in which appellant obtained the inoney before the warrant was issued, nor was there anything shown to cause an ordinarily prudent person to

investigate whether he won the money in the manner stated. Appellant did not have a reputation as a gamhler, and, according to his own evidence, he seldom entered such games.

The court also told the jury that if the evidence did not show that appellee had probable cause, at the time the warrant was issued, for believing that appellant. had committed the offense, that fact was evidence of malice; but if appellee had knowledge of such facts as would have led an ordinarily prudent person to believe that appellant was guilty, then they should find for appellee, regardless of what his feelings towards appellant were. It takes both malice and the want of probable cause to maintain an action like this. Malice may be inferred from a want of probable cause, but a want of probable cause cannot be inferred from malice. If this principle of law did not exist, there would be a laxity in the enforcement of the criminal law, as persons would not institute such proceedings for fear of rendering themselves liable in damages in case they failed to convict.

Appellant objected to instruction number four given by the court, because it authorized the jury to find for appellee if he, before making the affidavit, stated all the facts to R. E. Robertson, the county attorney, and asked his advise as to whether or not a warrant should be procured, and Robertson advised the making of the affidavit and the issual of the warrant. Appellant did not object to this instruction because it did not state the law correctly, but for the reason there was no proof on this point. Robertson, the county attorney, was dead at the time of the trial; consequently, appellee was not permitted to testify to anything that passed between them and there was no positive evidence that he related to the county attorney the facts or that the attorney advised him to make the affidavit and procure the warrant. This is a somewhat doubtful proposition, but the rule of this court is that every question of fact supported by a scintilla of testimony should be submitted to the jury. There was evidence to the effect that Stockdell went to the county attorney to secure the warrant and was advised that it was necessary for Nolen to make the affidavit; that Stockdell went after Nolen who went to the office of the county attorney and made the affidavit; and there was also evidence that the affidavit was in the handwriting of the county attorney. The jury had a

right to infer from these facts, especially when it was the duty of the county attorney to prosecute such cases, that the county attorney was fully advised of all the facts before he wrote the affidavit.

Appellant's counsel objected to the competency of the testimony showing the conduct of appellant while in the city of Lexington, contending that it had a tendency to impeach the character of appellant which could not be done by proof of any particular acts. This is true, but as we understand it that testimony was not introduced for that purpose, but only to show probable cause for the belief that appellant was the person who broke into the office and stole the money and check.

After a careful consideration of the record, we are of the opinion that the jury determined the case upon the theory that appellee had knowledge of sufficient facts to lead an ordinarily prudent person to believe that appellant was guilty, and that appellant acted on that belief and without malice; therefore, the judgment is affirmed.

1.

2.

City of Harrodsburg v. Sallee.

(Decided March 18, 1911.)

Appeal from Mercer Circuit Court.

Municipalities-Liability for Obstruction on Sidewalk.-In order to hold a city liable for an injury to a pedestrian caused by his falling over an obstruction on a sidewalk, it must be shown that by exercising ordinary care the city, its officers or agents, could have known of the existence of the obstruction and removed the danger.

Notice-When to be Impted to the City-Notice of an obstruction upon a sidewalk will not be imputed to the city where the obstruction is of recent origin, or is in anywise concealed.

3. Notice-When Question of Law. Whilst generally the jury should determine, as a question of fact, whether a city had such notice, yet, where the facts are undisputed, and but one reasonable inference can be drawn from them, it becomes a question for the court to decide.

4.

Peremptory Instruction.-Where the obstruction had remained upon the sidewalk for thirty hours, the trial court properly overruled defendant's motion for a peremptory instruction.

C. E. RANKIN for appellant.

ROBERT HARDING and B. F. ROACH for appellee.

OPINION OF THE, COURT BY JUDGE MILLER-Affirming.

2

College street is one of the principal highways of Harrodsburg. On the east side of that street and in front of the Vanarsdall property there is a brick pavement, five feet and nine inches wide, running northwardly and southwardly and next to the property line. Between the brick pavement and the curbing of the street there was a grass plot six and one-half feet wide.

In October, 1909, Mr. Vanarsdall laid a line of pipe from his house across his lot and into College street, where it was connected with the sewer in the street. In doing this work he tore up the sidewalk in front of his. property, put down the pipe, and refilled the excavation. This work was done for Vanarsdall by Adams, a plumber. The superintendent of the water works caused a holebetween two and three feet deep to be dug in the grass plot for the purpose of taking up an old water plug which was to be replaced with a new one. This hole was very near the excavation which Vanarsdall had nade through the sidewalk. The dirt from the hole was thrown into a pile on the side next to the sidewalk, and the pile was of sufficient size to cause the dirt to roll some six or eight inches on to the sidewalk. While the aprellee, Rebecca, a colored woman forty-eight years old, was walking along this sidewalk on the night of Thursday, October 7, 1909, in company with her twelve-yearold daughter, she stumbled against the pile of dirt and fell over it into the hole. Her hand was cut, her back hurt, and her kidneys injured by the accident. Appellee incurred the expense of a doctor's bill; sustained the injuries above set forth; was unable to do any substantial work for about three months, and had not fully recovered at the time of the trial in the following May. She sued the city for negligently permitting this obstruction to remain upon the sidewalk for an unreasonable time, and recovered a verdict for $300.00 damages. From a judgrent upon that verdict the city appeals.

The answer presents a traverse and an affirmative lea of contributory negligence on the part of the appellee.

The appellant assigns as its first and principal ground for reversal the failure of the circuit judge to sustain its motion for a peremptorv instruction.

The rule of law governing cases of this character is announced in Hazelrigg v. Board of Councilmen of Frankfort, 29 Ky. Law Rep., 208, as follows: