149 Ky. 490 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
In this suit by tbe appellee to recover damages for personal injuries sustained by reason of tbe alleged negligence of tbe appellant city in placing and permitting to remain in one of the streets an obstruction, tbe jury assessed her damages at $500.00, and from tbe judgment entered accordingly, tbe city prosecutes this appeal.
Tbe following facts appear from tbe uncontradicted evidence: That leading off from tbe main street in tbe city was an alley about twenty-five feet wide and some two hundred and twenty feet deep. This alley was what is called a “blind alley,” and was used as an entrance to tbe back yards and stables of tbe property owners abutting on it, tbe rear or back end of tbe alley being closed. That on public days when large crowds were in tbe city, noisy, drunken and disorderly persons were in tbe habit of congregating in this alley, to tbe great
There is much force in the argument of counsel for appellant that the act of the city in maintaining the rope was not the proximate cause of the injury, as the rope did not in any manner obstruct the use of the street or sidewalk in the customary manner of their use, although if an attempt had been made to gO' from the street to the sidewalk, or from the sidewalk to the street, at the place where the rope was suspended, it would offer in some measure an obstruction. The rule is that to constitute negligence in cases like this where concurring independent causes produce accident, the injury complained of must be one that under the circumstances might have been reasonably foreseen or'anticipated by a person of ordinary prudence to flow from or be the natural or probable consequence of the first negligent act. Sydnor v. Arnold, 122 Ky., 557; Louisville Home Telephone Co. v. Gasper, 123 Ky., 128. And so, it is argued that as the rope was so placed as not to obstruct the customary travel, the city in the exercise of reasonable prudence could not have anticipated that anything would come in contact with this rope in so violent a manner as to cause it to become unfastened or break, and, hence, should not be held liable for the act of the run-away horse that caused the rope to break or become unfastened.
But, passing this question as not necessary to a decision of the case, we are of the opinion that the city is not liable for another reason. Keeping in mind that the city is sought to be held responsible on the sole ground that in maintaining the rope it failed in its duty
While it is the general rule that a city is under a duty to keep the streets and public ways accessible for travel and free from obstructions that might cause injury, this general rule is not without exceptions. In the safe, convenient and orderly conduct of its affairs, every city frequently finds it necessary to obstruct or to permit others to- obstruct its streets and public ways and to make them unfit and dangerous for use and to partially or completely close parts of them to public travel. Frequent and daily illustrations of this are seen when streets and other public improvements are being constructed or reconstructed, and when buildings abutting on streets are being erected or repaired. But no ene would contend that the city was liable for- thus temporarily closing or obstructing, or permitting others to temporarily obstruct or close its streets if reasonable barriers or lights were placed to give notice of the obstruction or the unsafe condition of the streets. It has also been held permissible for a city to erect barriers across the streets during fires or when a parade is in progress, or when it is necessary to prevent the noise of passing vehicles from endangering the life of a sick person in a house adjacent to the street, or to protect grass plots. Anderson v. Mayor, 2 Pennewells, Delaware, 28; City of Paducah, v. Simmon, 144 Ky., 640; Simons v. City of Atlanta, 67 Ga., 618, 44 Am. Rep., 739. In this last mentioned case,, the court said:
“The right temporarily to obstruct a street springsfrom reasonable necessity,, and is limited by it, and those who exercise the right must so conduct themselves as to discommode others as little as is reasonably practicable, and remove the obstruction or impediment within a reasonable time, having regard to the, necessities and circumstances of the case; and when they have done this, the law holds them harmless.,* * * It is, however, a safe and reasonable rule to declare that so long as the alleged obstruction is temporary and reasonable in its character and is intended for the public safety and convenience, it is no cause of complaint. ’ ’
As there can be no- doubt of the right of a city to obstuct temporarily the use of its streets under certain circumstances, if it employs such means of obstruction as are reasonably suitable and sufficient to warn travel
- We think the city in the exercise of its police power had the undoubted right to prevent the assembling in the alley of the disorderly crowd who made it a habit on public days to congregate there to the annoyance and disturbance of adjacent property owners, as well as persons parsing on the street. Having then the right to close the alley on these occasions to the class who fre- . quented it, the only question is, did it have the authority to do it in the manner described.
Of course, the city might have closed the alley by the use of a gate, or it might have stationed a policeman there to prevent the assembling of disorderly crowds, or possibly it might by proper procedure have closed the alley entirely as a public way; but the fact that it might have prevented the use of the alley by disorderly persons in any one of these ways did not prohibit it from adopting the means it did.
The motion for a peremptory instruction should have been sustained, and, if there is another trial, and should take the case from the jury and enter a judgment the evidence is the same as in this record, the trial judge dismissing the petition.
Wherefore, the whole court sitting, the judgment is reversed, with directions for a new trial in conformity with this opinion.