151 Ky. 279 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
A property owner in September, 1911, was making an improvement on his lot fronting Main street in Car-lisle and for this purpose hauled and placed in the street, a pile of rock ten or twelve feet long, four or five feet wide and from one to two feet high, the pile of rock being four or five feet from the curb and there being about twenty-five feet of the street left unobstructed. The pile of rock had been there about two weeks when Newell Campbell, who lived in the country, while driving down.' the street about dusk in a buggy, drove over the rock and was thrown out of his buggy and hurt. He brought this suit against the city'to recover for his injuries. The proof o'n the trial showed clearly that the city authorities knew of the rock pile in the street or should have known of it in the exercise or ordinary care. There were no lights upon the pile of rock, the street lamps ¿ad not been turned on; but there were lights put up for
It may be that the property owner was negligent in putting the rock in the street as he did and failing to put a light upon it to warn persons of the danger at night; but his negligence does not exonerate the city from liability. The primary duty rests upon the city to maintain its streets in a reasonably safe condition. When it knew the rock was in the street it was incumbent on it to see that it was properly guarded, and it is liable to a person injured by reason of the street being in a dangerous condition. It is no defense to the city that it did not know that the property owner had failed to put lights on the rock. When it knew that the rock was in the street and that it made the street unsafe for public travel when without lights at night, it was its duty to see that its street was kept safe. In Glasgow v. Gillenwaters, 113 Ky., 143, we sustained a recovery against the city where a person had been injured by falling in the dark over a wire stretched in the street by a contractor. We do not see that this case can be distinguished from that. (See also Midway v. Lloyd, 74 S. W., 197; Carlisle v. Secrest, 25 R., 336; Paducah v. Simmons, 144 Ky., 641; Campbellsville v. Morgan, 150 Ky., 417. The case of Elam v. Mt. Sterling, 132 Ky., 657, is very different from this ease. That was a suit for a horse taking fright at some rock; and it was held that there could be no recovery as the rock was not of an unusual character and was out of the traveled way of the street. Here the rock was in the street, and when the buggy ran over it, the man was thrown out.
The instructions which the court gave were substantially the same as those asked by the defendant! We do not see that the jury could have understood them differently.
Judgment affirmed.