113 Ky. 140 | Ky. Ct. App. | 1902
Affirming.
Appellant city, by ordinance, let tlie contract for tlie improvement of one of its streets. Rians and specifications were included in' the agreement executed between the city and the contractor. In doing the work the street was so torn up as to render it unsafe for travel. The contractor, by his servants, caused a barbed wire to be strung from a telephone pole standing at the edge of the pavement to the opposite side of the street, to prevent travel over the portion undergoing repairs. The wire was about five feet from the ground. While the street and the wire were in this condition, appellee attempted to go across the street, and, in a course theretofore customarily used by pedestrians going to and from the railroad depot in that vicinity, ran into this wire, severely cutting his lips and gums. ETad he kept to the sidewalk, he could have avoided the obstruction. The injury occurred in the night time. It is claimed for appellee that there was neither light nor other appropriate warning of this dangerous arrangement. In this, suit by appellee against the city for damages for this injury, it pleaded, among other defenses, that it had let this contract to an independent contractor, and was not responsible for his negligence; that it had no control over the manner of his executing the work; that the contract, in or of itself, did not necessarily involve the dangerous situation by which appellee was injured. A demurrer was sustained to this plea. The correctness of this ruling is the principal question involved in this appeal.
The city is required by statute (section 3643, Kentucky Statutes) to keep its streets in a reasonably safe condition for travel and free from obstructions, and it would seem that such would be its duty independent of such statute. Fugate v. City of Somerset (14 Rep., 809) 29 S. W.,
Appellant asked the court to instruct the jury that if appellee unnecessarily left the sidewalk, which was safe, and, without good or sufficient reason, walked or ran into the wire across the street ,and was injured, they must find for the defendant. This instruction was refused, and the refusal is made the basis of a complaint upon this appeal It was said in the case of City of Lexington v. Auger, 4 Ky. Law Rep., 24: “It is true, there was ample room on the sidewalk for the traveler, and he would have to main1 a diversion from the main path to reach the danger; still he had the right to use any part of the street, for the purpose of. traveling.’-' City of Olathe v. Mizee, Kan., 435. 29 Pac., 754, 30 Am. St. Rep., 308. In the last-named .case it
The verdict of the jury -and the judgment for appellee of $220 is not excessive, and is sustained by the law and the evidence.
Judgment affirmed, with damages.