Board of Councilmen of Frankfort v. Buttimer
143 S.W. 410
Ky. Ct. App.
1912
Check Treatment

Opinion of the Court by

Judge Miller

Affirming.

Mrs. James Bnttimer, the mother and guardian of the appellees, Jennie and Mary Julia Bnttimer, owns the house in "which they reside at the corner of Todd and Logan streets in Frankfort. In April, 1909, the appellant undertook to drain a stagnant рond located upon the Dnnnigan lot, which lies immediately across the street from Mrs. Buttimer’s lot, by carrying the water frоm the pond into the catch-basin at the street corner, and in so doing it left dirt and other material piled in the strеet, which was washed into and obstructed the catch-basin to such an extent that the water flooded the cellar of Mrs. Buttimer’s house. The cellar was six feet deep, and was entirely filled with water, which remained there for quite a while. She notified the Mayor, and he sent a city employee to Mrs. Bnttimer’s property for the purpose of seeing what ‍​​‌‌‌​​​‌​‌‌​‌​​​‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌‌​​​​​‍was to be done, but nothing substantial was'done. In August Mrs. Buttimer’s two children, Jennie aged 16, and Mary Julia aged 13, beсame sick. Jennie was afflicted with neurasthenia, accompanied by a loss of flesh, and anemic conditions, while Julia suffered from August until October or later, with malarial fever, which left her with a shortened limb. The mud and water and dеcayed material remained in the cellar from April until August. • The house was made unfit for occupation, and disаgreeable and musty odors from the cellar permeated through the entire building. The two children, Jennie and Mary Julia, brought these two actions by their guardian, against the city for damages. The cases were heard upon the sаme evidence, and plaintiffs recovered verdicts for $800.00 and $300.00 respectively. The city appeals in each case.

1. Appellant demurred to the petition for the reason *817that it failed to allege that the city had notice of the negligence which consisted in leaving the dirt, or digging the trench in such a way as to canse the obstruction of the sewer, and the overflow- of the cellar. The petition, however, alleges that the city did these acts; that it dug the trench and left the dirt; and, that being truе, it necessarily had knowledge of those acts. This is- ‍​​‌‌‌​​​‌​‌‌​‌​​​‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌‌​​​​​‍not a case where some person other than the city obstructs the street in such a way as to cause injury and damage to third persons. It is well settled that a city is not liablе for injuries caused by an obstruction in its street unless it knew, or by the exercise of ordinary care could have known, of the existence of the obstruction. Hazelrigg v. The Board of Council, 29 Ky. L. R., 207; 92 S. W., 584; City of Harrodsburg v. Sallee, 142 Ky., 830. But this principle is not applicablе to the case at bar, for the reason that the obstruction was ‍​​‌‌‌​​​‌​‌‌​‌​​​‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌‌​​​​​‍caused by the city itself, and it therefore nеcessarily had actual notice of the obstruction.

2. Appellant further contends that there was a variance in the proof to such an extent that it did not sustain the cause of action alleged in the petition. Shоrtly after the first trouble with the catch-basin, . appellant undertook to open it by forcing water into it by means of a hose attached to the water plug, but did not succeed in opening it. On the contrary, this effort merely addеd to the volume of water; and it is contended by appellant that, the overflow was made by the water from thе plug, and not from the dirty pond, as alleged in the petition. There is some evidence to sustain this claim in part, ‍​​‌‌‌​​​‌​‌‌​‌​​​‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌‌​​​​​‍аlthough the jury were fully warranted in concluding that the house was flooded from both causes. The water having been drаined from the pond, it naturally collected around the obstructed catch-basin; and when appellant added fresh water to that collected around the catch-basin, thereby causing the overflow, if it did so causе it, it was doubtless true that -the overflow, of water that went into the cellar contained the dirty water from the pоnd. Under these circumstances the proof did not show a substantial variance from the cause of actiоn set up in the petition. Civil Code, Secs. 129, 130 and 131.

3. It is further insisted that since there is no complaint of any defect in the sеwer or catch-basin, as to whether ‍​​‌‌‌​​​‌​‌‌​‌​​​‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌‌​​​​​‍it was defective, or not large enough to carry off the usual volume of water that might gather in the' *818immediate neighborhood, tbe city is not responsible, if tbe overflow was caused by ordinary rains and tbe collection of water in tbe nsual conrse of events. It is shown, however, that the city’s work-house keeper, by tbe nse of hose, tnrned tbe water from tbe water ping into tbe obstructed catch-basin, and thereby added, if be did not canse, tbe overflow. This vas an affirmative act of negligence for which tbe city clearly wаs liable.

4. There is no complaint made of tbe instructions given by tbe court. It is insisted, however, tbat.it was the duty of Mrs. Buttimer, as tbе guardian of tbe plaintiffs, to use ordinary care to prevent tbe injuries to her wards resulting from tbe failure of tbe dеfendant to remove tbe water from her cellar, and that tbe plaintiffs could not recover for any injuries аggravated by her failure to do so. This question is not before us; for, although appellant offered an instruction to that effect, and took an exception to the ruling of tbe court, which refused to give tbe instruction, it did not assign that failure as a ground for a new trial. Acme Mills & Elevator Co. v. Rives, 141 Ky., 783.

5. In answer to tbe contention that the damages are excessive,, and not sustained by tbe evidence, it is sufficient to say that tbe appellees not only were put to great expense for physicians’ bills and otherwise, but they suffered greatly from their long continued sickness, and their health has not yet been restored. Tbe jury was. tbe judge of tbe extent of tbe injuries, and tbe amount of damages to be awarded therefor; and from these records we are not prepared to say that their respective findings are flagrantly against tbe weight of tbe evidence.

Judgments affirmed with damages.