176 Ky. 712 | Ky. Ct. App. | 1917
Opinion op the Court by
.Affirming as to the City of Louisville and reversing as to the Bickel Asphalt Paving Company.
Guy O. Yeager, a boy between nine and ten years of age, residing in the city of Louisville, Jefferson county, Kentucky, while riding a bicycle on Bardstown Road, near the intersection of Sherwood avenue, fell from his wheel under a coal'cart of the Pittsburg Coal Company, which rail over and severely injured him in his limbs and other parts of his body. To recover damages for the injury, he, by his father, 'W. C. Yeager, as next friend, instituted this action on the 18th day of February, 1915. The City of Louisville, Pittsburg Coal Company, the Louisville Street Railway Company, and the Bickel Asphalt Paving Company were all made defendants, it. being alleged in the petition that the plaintiff, while riding his bicycle along the public street was injured through the failure of the Pittsburg Coal Company, its agents and servants in charge of its coal cart then being driven along the street in the same direction that the plaintiff was traveling, to exercise reasonable care for his protection after his peril had been discovered, or could
Each of the defendants answered denying the allegations of the petition, and pleading contributory negligence on the part of the plaintiff. Issue was joined and upon trial before a jury, the court, at the conclusion of the testimony for plaintiff, sustained a motion of the defendants, Street Railway Company and the Pittsburg Coal Company, for peremptory instructions, but overruled a similar motion as to the other defendants. This motion was again entered by the paving company and the City of Louisville, at the conclusion of all the evidence, and again overruled, and of this each complains.
The evidence for plaintiff, in substance, supports the allegations of the petition as to the City of Louisville, but is rather unsatisfactory and vague as to the paving company. The boy testified in his own behalf; he claims
It is agreed that the street at the point of his injury was in course of reconstruction by the city, through its contractors, the asphalt company, and that the street railway company had given up one of its tracks and had arranged for the cars at that point to cross over and use the other track so as to give the contractors an.opportunity to reconstruct one-half of the street, while the other one-half was being used by the public. The public was using the right hand side of the street as you travel from the city towards the country, and the coal cart was driving from the city towards the country-on the right hand track, when it met the incoming street ear. The plaintiff was likewise riding from the city towards the country on the right hand side of the street only a few feet from the curb. The plaintiff does not claim that he knows exactly what caused his wheel to throw him, but he insists that it must have been a brick in a depression in the street. However, .the witness, who was standing on the left hand side of the street, claims to have seen the wheel strike a brick-bat and cause plaintiff to fall; another witness on the right hand side of the street thought the fall was caused by the wheel dropping into a hole; but neither of these eye-witnesses was in position to clearly see the actual situation. If the fall of plaintiff was caused or contributed to by the wheel striking the brick-bat, the evidence is not clear or convincing as to whom the brick-bat belonged or who was responsible for its presence in the street, because the telephone company had shortly before the' accident been constructing a conduit and employing brick in that work along near the place where plaintiff was injured, and had left some
The case against the City of Louisville is stronger because several witnesses testified to numerous holes and depressions in the street, which had. been there many weeks and that one of these holes caused or contributed to the injury of plaintiff. It is the. duty of the city of-Louisville to keep and maintain its streets in a reasonably safe condition for the traveling public. The evidence discloses that this street was in bad repair and had been for many weeks previous, and that holes, such as the one described in the evidence, had been worn in the street at several places near the point in question, and that these holes or depressions were two or three inches deep and had been there long enough for the city, through its agents, to learn of their existence, and to cause the same to be repaired before plaintiff’s injury.
It is earnestly insisted for the city, however, that its motion for judgment, notwithstanding the verdict, should have been sustained, because the petition fails to allege that the street upon which plaintiff claims to have been injured, was a public thoroughfare within the corporate limits of the city of Louisville, which it was the duty of the- city to maintain. True, the petition does not allege these facts in terms, but does charge that the Bardstown Road at the point in question lies within the corporate limits and is the principal street and means of ingress and egress between the city of Louisville and the outlying country, and that it supports a heavy traffic; and further that it was the duty of the city to keep and maintain its streets in a reasonably safe condition, and that this street was defective and out of repair, full of holes and depressions at the time and for weeks previous to the injury of plaintiff. Manifestly both counsel for plaintiff and defendant in the lower court were proceeding upon the idea and assumption that the B'ardstown Road, at the point in question, was a street in the city of Louisville, which it was the duty of the city to maintain, and since the city, through its contractor, .the Bickel
“As is well known the Bardstown Eoad is probably the most used roadway in the state of Kentucky, and has been so used as the medium of traffic, or passage, particularly heavy hauling, time out of mind. ... In the summer of 1915 the appellant, the City of Louisville, let the contract for reconstructing that part of said road, above indicated, to the appellant, the Biekel Asphalt & Paving Company, as an independent contractor, and required it to reconstruct one-half of said road at alternate times, so-that the public might continue to use the other half, not then being actually reconstructed. The city was forced to take this course, the only alternative being to close this important artery of commerce to the public entirely. To have shut out the public entirely would have caused very great inconvenience, not merely to the persons living along the immediate vicinity of the improvement, but to gardeners, coal merchants and other haulers of supplies or foods to, and from, the city. . . .”
“There was very considerable testimony offered in behalf of the appellee, tending to show that the -part of the road then being temporarily used by the public was seamed with ruts, depressions and holes and not in good physical condition. It is manifest that this piece of roadway was not in a good condition, as otherwise the city of Louisville would have been guilty of a gross waste of public funds in reconstructing it. Common sense teaches us that roadways are not- to be constructed until thby are more or less run down. Common sense further teaches us that public traffic going out and in over this narrow one-half of a road, day and night, would necessarily and utterly prevent any substantial or real repair of the tuts or holes complained of, for the very simple reason that whatever material might be placed in such places would be cut out as fast as put in by passing vehicles. ’ ’
The petition might have been more specific, direct and certain, but the real issue was not as to whether the street was in the city, and one which it was the duty of the municipality to maintain, but whether the street at that point was defective and out of repair and had been for such length of time as to have afforded the city op
“When the verdict can be fairly considered as establishing between the parties the very fact which should have been, but is not, precisely averred in the declaration, and especially when it clearly appears that the particular fact was understood by the parties to be the point in issue to be decided by the jury, it would be unnecessary for the ends of justice and would be more than useless to remand the case that it should again be presented for the consideration of the jury.”
Measured by this rule, the motion for judgment, notwithstanding the verdict, was properly overruled.
The appellant, City of Louisville, next contends- that because it was discharging a function of government in having the street reconstructed at the time and place of the injury of plaintiff, it is, therefore, not responsible for plaintiff’s'injury even though its agents were guilty of' negligence. This contention is not tenable because the street upon which the plaintiff was riding at the time of his injury was open to the public and was not at that particular point in course of reconstruction. The contention, however, is that one-half of the street at that point was left open for the benefit of the public, while the other half was being repaired, and that the public was the beneficiary and cannot complain. It is a well-recognized rule that where a street is thrown open for public use those who travel upon it have the right to assume that it is in a reasonably safe condition, and if without fault of their own, or without knowledge of some existing obstruction, injury results, the city is liable unless the defects which caused the injury had existed for so short a time that the city officials, by the exercise of reasonable care and supervision, could not have known
A city may not leave open to travel by the public a defective street, and plead contributory negligence as a defense to an action for damages for personal injury where the contributory negligence consists merely of the plaintiff riding or traveling along the defective street which the city had left open for that purpose. The plaintiff Yeager was not guilty of contributory negligence in attempting to ride his bicycle along Bardstown Eoad at the point of-his injury, because the street was left open for public travel, and he had a right to be on it at that point with his bicycle. An open street is an implied invitation to make use of it, and especially is, that true in this case, it appearing the street at that particular time and place was being constantly used by vehicles of all kinds. If a city cannot repair a defective street without exposing the traveling public or some members thereof to injury, or if in making repairs on the one side of a street, the other side is rendered defective or unsafe for the use of the public, it is the duty of the city to close the street until it is made reasonably safe, and a failure to do so may render the city responsible in damages for resulting injuries to travelers. Neither can it be said that plaintiff Yeager was guilty of contributory negligence, as matter of law, when he attempted to pass the coal cart, because the evidence for plaintiff shows he had reasonable passage way. The question of whether plaintiff was guilty of contributory negligence was, therefore, properly determinable by the jury under proper instructions from the court.
The second instruction is complained of by the paving company, and this objection appears to be well taken. Upon another trial this instruction should be so reformed as to submit to the jury the question of whether or not the street became and was dangerous and unsafe for the use of the public, and this condition, if such there was, continued for such length of time as that the defendant knew, or by the exercise of ordinary care could have
Other grounds are relied upon by the City of Louisville for a reversal of the judgment, but a careful examination of these several grounds does not disclose any sufficient reason for such action.
The judgment is, therefore, affirmed as to the City of Louisville, and reversed as to the Bickel Asphalt Paving Company for a new trial consistent with this opinion.