60 S.W.2d 123 | Ky. Ct. App. | 1933
Affirming.
At the time of the accident in which appellee, Mrs. Mary De Molay, suffered personal injuries for which she recovered a judgment for $2,000 against the appellant, city of Covington, Nineteenth street in that city had been recently raised and graded at the point as an inclined approach to a viaduct. To permit settlement and packing before surfacing with concrete, the street had been opened for traffic for about two weeks. On Thursday preceding the accident, an excavation had been made across the street, about fifteen feet long and *815 two and a half feet wide and three feet deep, for the installation of a portion of a fire hydrant main. The pipe was put in and the trench filled with loose earth on Friday. This was all done under the orders of the city and by city employees. There was a steady, hard rain Saturday night and the rain continued during Sunday. In the late twilight of that Sunday evening, the appellee and her husband drove over the street. The front wheels of the car passed over the filled excavation, but the rear wheels suddenly sank into it. The rear of the machine went down into the ditch so far that the front wheels were raised into the air. The sudden stop of the automobile threw Mrs. De Molay about, resulting in several bruises and severe internal injuries. The evidence is that the filled ditch had become a hole filled in part with very soft mud, or "mush" as some of the witnesses called it. The city had a man on the street for the purpose of keeping the holes in it filled and to keep it in passable condition.
The duty of a city to maintain its streets in a reasonably safe condition for travel is, quite naturally, conceded. But the appellant is claiming that since the proof did not show when this condition was created the case cannot be brought within the rule as to imputed notice of the defect, and that actual knowledge on the part of the proper city authorities was not shown. Several cases are cited stating and applying the rule.
Of those authorities, Armour Co. v. City of Louisville,
As pointed out, in Tudor v. City of Louisville,
In City of Harrodsburg v. Sallee,
"The obstruction, therefore, had been upon the sidewalk for about 30 hours previous to the accident to the appellee. Moreover, there was evidence strongly tending to show that the hole was dug and the dirt piled upon the sidewalk under the direction of Farney, the city's superintendent of its waterworks. *817 Under this state of fact, we are clearly of opinion that the circuit court properly overruled appellant's motion for a peremptory instruction, and submitted to the jury the question of negligence and notice on the part of the city in permitting the obstruction to remain upon the sidewalk an unreasonable length of time."
In City of Covington v. Webster, 110 S.W. 878, 33 Ky. Law Rep. 649, the city had built a cinder sidewalk on a fill supported by a wall constructed of boards. In some places openings had been left in this wall of such size that the cinders leaked through and created a hollow space beneath the surface of the walk. A man was injured when the pavement gave way under him. Said the court:
"The city having constructed the walk and put up the retaining wall, we do not think it was necessary to prove notice of the defects in the construction thereof. The defect in the retaining wall was apparent when the city built it, and no subsequent notice of this defect was necessary."
In Burger v. City of Philadelphia,
But the appellant argues that the appellee is not entitled to the benefit of the law which makes the city liable for a dangerous condition brought into existence by its own employees because it was not specifically plead. The petition charges that the defendant knew of the existence of the hole, or by the exercise of ordinary care could have known of it, and that it had been in the street for a time sufficient to charge the city with knowledge of its existence. It was not necessary that the plaintiff should plead how the defendant acquired notice. We think the allegation sufficient. The case was submitted to the jury on the issue of notice and not on any theory of liability for defective construction.
It is suggested, without discussion, that the verdict is excessive. A consideration of the injuries shown to be due to this accident, and the resulting damages, does not by any means convince us that the verdict is unreasonable or excessive.
Wherefore the judgment is affirmed.