151 Ky. 483 | Ky. Ct. App. | 1913
Reversing.
Plaintiff, Effle Benton, while crossing one >of the ■streets in the city of Oorbin, fell into a ditch or culvert •and was injured. She brought this action against defendant, the city of Corbin, to recover damages. Prom a verdict and judgment in her favor for $200, the city of Oorbin appeals.
A reversal is asked because of the alleged error of the trial court in refusing to direct a verdict in favor of the defendant. The determination of this question requires a brief statement of the facts.
The accident happened at the crossing of Kentucky and Monroe streets. The pavements at that point are concrete, while the regular street crossing is made of two rows of stone, running parallel, each stone being 12 or 15 inches in width. Upon the opposite side of the street from where plaintiff was injured the pavement is higher, and some stone' steps are built to reach the pavement. At the time of her injury plaintiff was not using the regular crossing, but was walking over a culvert, which is frequently used by the traveling public as a crossing. This culvert runs diagonally across the street, and was built for the purpose of conducting a •small branch under the street. The culvert is 22 inches wide and 18 inches deep. Its .sides are walled with stone, and it is covered with flagstones three or more inches in thickness. At the place of the accident these flagstones are laid against the concrete pavement, the top of the flagstones being six inches below the pavement. In the center of the street where the roadway is built the flagstones are covered with dirt. At each end of the culvert, next to the sidewalk, there is no dirt over the flagstones. Plaintiff says that she had left the regular crossing and was proceeding along the culvert for the purpose of crossing over from one street to the other. It was in the day time, and she was pushing her baby in a go-cart. She had just placed the front wheels of the go-cart upon the sidewalk, which was higher than the street, and was about to put the back wheels up when she stepped on the second stone from the pavement, and it slipped and she went into the ditch, causing her certain injuries which it is not necessary to describe. The stone was broken. She had been using the crossing off and on for about six years1, .and, .so far as she noticed, the
According to the evidence for the defendant, as- given by its mayor, its city attorney and its street commissioner, the stone which broke and fell into the culvert was three feet -and three inches in length, ten inches wide at one end and 15 inches- wide at the other. Where the stone broke, it was 12 inches wide. It was three inches thick at one end and three and one-eighth inches thick at the other. In the middle it was three inches- thick. The stone was freshly broken. None of the officers of the city had any knowledge of any defect in the stone or -of its being negligently placed o.r being out of place, nor was there anything in its appearance to indicate any of these conditions.
We have frequently held that a municipality is not an insurer against accidents to persons using its thoroughfares. It is not liable for injuries- caused by defective streets in the absence of actual notice of such -defect, or unless the defect has existed so long that notice -o-r knowledge thereof should be imputed to the city. But notice should not be imputed where the defects are of recent origin, and particularly where they are concealed in any way. Whilst generally the jury should -determine, as a question of fact, whether a city ha-s- such notice, yet where the facts are undisputed, and but one- reasonable inference can be drawn from them, the question is one for the court to decide. Bell v. City of Henderson, 24 Ky. L. Rep. 2435; Hazelrigg v. Board of Councilmen of Frankfort, 29 Ky. L. Rep., 208; City of Harrodsburg v. Sallee, 142 Ky., 829. Counsel for plaintiff, however, insist that, under the rule laid down in the case of Board of Councilmen of Frankfort v. Jennie Buttimer, 146 Ky. 815, the doctrine -of notice has no application to a cas-e where the -city itself places an -obstruction in the -street, or negligently constructs t-he’ street so as to render it dangerous for public travel. This is- true, but no- such case is here presented. I-t is admitted that there is no
Judgment reversed and cause remanded for new trial consistent with this opinion.