178 Ky. 749 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
The appellee, Mrs. Graves, sustained injuries by falling on a concrete .pavement in the city of Lebanon, and in this suit to recover damages there was a verdict and judgment in her favor, and the city appeals.
. On the main street, and in the business quarter, of the city the natural- formation of the surface of the ground on which the pavement was laid was not level, and it appears that in the concrete pavement, which followed the natural formation of the ground, there was a gradual elevation carrying it from the lower level to the higher one. In this rise or elevation there was a block of concrete about six feet wide with a smooth, and — as said by some of the witnesses — a very slick surface,- that sloped with the .pavement about two inches to the foot and also sloped toward the curbing, forming at its highest point what is described by the witnesses as a bulge- in the pavement ; and it was at or near the highest point in this block of concrete that Mrs. Graves, while walking along the pavement in the usual way, slipped and fell.
It further appears that this block of concrete had beeii put in the pavement when it was reconstructed about
As .illustrating the danger to which pedestrians were subjected while walking on this sloping block of concrete, Edgar Bowman, who was employed as a clerk in a store fronting on the pavement at this point, was asked and said: ‘ ‘ Q. Mr. Bowman, I will get you to state whether or not the place where Mrs. Graves fell is slick or rough. A. Very slick. Q. State whether or not it is slicker during wet weather or dry weather. A. I can’t see any difference; it’s just about the same; about as many people fall when it is dry as they do when it is wet. -Q. On,that sloping place, the exact place where Mrs. Graves fell, upon the occasion complained of, or within a few inches of that place, state whether or not you have seen anybody fall or slip there at that place. A. At the place where she fell? Well, I don’t know whether it would be the exact place, but I’ve seen lots and lots of people fall there. Q. How often have you. seen people slip and fall there? A. Every day since that new place has been down there. Q. How long has it been put in there? A. I think about two years.”
James Phillips, after saying that he was a resident of Lebanon and very familiar with the pavement in question, was asked and answered the following questions: ‘ ‘ Q. State whether or not you have seen people slip or fall prior to April 22nd (that is, the day Mrs. Graves fell) at the place on the pavement where Mrs. Graves fell. A. I think I have. I have seen several fall there. Q. State whether or not you have seen anybody slip there since this accident. A. I think the last one was about ten or twelve days ago. A boy slipped there and fell.”
J. E. Edmoncls, who had been engaged in the mercantile business on Main street near this place, many years, was asked: i£Q. Do you know where Mrs. Graves slipped and fell? A. Yes, sir; I know about where she fell. -Q. State whether or not you have seen anybody slip or fall at the place where Mrs. Graves fell. A. Yes, sir. Q. State whether or not at that place you have seen anybody-slip or fall prior to April 22, 1916. A. I have seen quite a number slip and fall. Some of them fall and some
Dr. J. T. Elliott, whose place of business was nearby where Mrs. Graves fell, testified: “Q. State whether or not you go down on that side of the street. A. Well, sometime I do, but I do not always get clear in front of it. I go out of the way of it. Q. I will ask you whether you are acquainted with the sloping place in the pavement. A. I ought to be; I have slipped there several times.' Q. Have you slipped there since that accident? A. No, I haven’t, because I go around it.”
Louis Edmonds, whose store was next door to Bowman’s in front of whose place Mrs. Graves fell, testified: “Q. State whether or not prior to the accident to Mrs. Graves you have seen any one slip or fall there at that place. A. Yes, I have. Q. How often? A. Oh, I expect I have seen a hundred people fall there or slip. It was a very frequent occurrence, a daily occurrence. Q. State whether it is slicker when it is dry or wet. A. It is slicker when it is dry. It was. a dry day when Mrs. Graves fell. ’ ’
There was no attempt to contradict the evidence of these witnesses as to the numbers of times persons had fallen or slipped on this pavement at this point.
There was also evidence by experienced concrete men who had made many concrete pavements that the surface of this elevated block of concrete could have been made reasonably safe for public travel in five or six different ways that would have converted the smooth and slippery .surface into a rough or grooved surface.
But conceding that the surface of the pavement at ■fthe point in question was so smooth and slippery as to • cause many persons walking on it to fall or slip, and that this condition had existed for some three years before the accident to Mrs. Graves the argument is made that as the surface of the ground had a natural grade or ele- ■ vation the city authorities had the right to construct or permit the construction of a pavement conforming to this natural grade;"that when a city, pursuant to a plan ■
In support of this contention our attention is called to Tealger v. City of Flemingsburg, 109 Ky. 746, in which the court adopted the prevailing rule that municipal corporations in the improvement of streets and public places have the right to adopt such plans and specifications as .appear, to them reasonable and proper under the circumstances without subjecting the city to liability for acci-, ■dents that may happen on account of the nature of the plan adopted, in conformity to which the improvement is .made.
But the court was careful to say: “But we rather in•cline to the view that, while the city governing body may •exercise its discretion in the selection of a plan of street improvement, if the plan adopted is one ¡palpably unsafe to travelers, the city would be liable. But when the plan is one that many prudent men might approve; or where .it would be so doubtful upon the facts whether the street .as planned or ordered by the city governing board was •dangerous or unsafe or not — that different minds might •entertain different opinions with respect thereto — the benefit of the doubt should be given the city, and it should not be held liable.” To the same effect is Carroll’s Admr. v. City of Louisville, 117 Ky. 758.
Again, in Clay City v. Abner, 26 Ky. L. Rep. 602, a ¡street accident case, the court said: “We understand the-rule to be that it is for the town council to determine ■whether a public way shall be improved at all, and if it is, the manner and extent of it. They are selected particularly with reference to their fitness and interest in ¡such matters. Unless the plan that they adopt is one .so obviously dangerous as would show a failure to consider, or a purpose to misconstruct the work, the judgment of the governing body of the town as to the plan is conclusive. The town is not liable in damages for ac,-cidents that may occur on the highway, because the very best plan or even a better one in the view of the jury, was :not adopted.” To the same effect is City of Louisville
In McCourt v. City of Covington, 143 Ky. 484, another street accident case, the court said: ‘ ‘ The city has exclusive control in the construction, of its streets, sidewalks, sewers, catch basins, etc., and hence may determine how the sewers shall be run and. where the catch basins shall be located, and no ground of complaint is afforded because the sewers are so run as to require the catch basins to be located in the sidewalk, unless the plan adopted for their construction is inherently dangerous, or, after being constructed, they are suffered or permitted to become and remain out of repair.”
In the late case of Tudor v. City of Louisville, 172 Ky. 429, the court, after referring to a number of authorities, said: “We would not be understood as holding that a city would not be liable under any circumstances because of smoothness and slipperiness of a sidewalk, either as originally constructed, or becoming such by use, resulting in its becoming dangerous or unsafe for travelers. If such conditions, accompanied with such danger, are shown to exist, the place could not be said to be reasonably safe, under the law, and if a city has actual knowledge thereof, or constructive knowledge, as herein defined, its liability would be thereby established.”
In Stone v. City of Seattle, 30 Wash. 65, 67 L. R. A. 253, the court said: “We think in any event, however, that the weight of authority is against the appellant’s contention, and that a city cannot relieve itself from liability for defective streets because the defect may be part of an original plan of construction. ... We think it was a question for the jury in the case at bar whether the city neglected to keep the street in safe condition, and it is immaterial whether the defect arose from the original construction or from subsequent causes.” To the same effect is Giaconi v. Astoria, 60 Or. 12, 37 L. R. A. (N. S.) 1150. And in the extensive note to the Stone case there will be found many authorities on this subject.
The principle to be gathered from the authorities cited, as well as from many others discussing the same question, is that municipal authorities, in adopting and executing plans for street improvement, have broad latitude and. discretion as to the character of the street improvement, when and where it shall be made, and the material out of. which it.shall be constructed; and their dis
It would appear, therefore, that it makes little if any substantial difference so far as the liability of the city is concerned whether the unsafe and dangerous con- - dition of the street was due to a defective plan, or due to conditions that the city permitted to come up after-the construction of the street pursuant to a plan that contemplated a street reasonably safe for public travel; and that when a city undertakes to construct or reconstruct a street or pavement, it is under a duty to so construct and maintain it as that it will be reasonably safe for pub- ‘ lie travel; and this duty is a continuing one, and no plan will justify the construction of a pavement so slick and, slippery as to. be unsafe and dangerous. '
This is the measure of its duty to the' public, and it is within the limits of this measure of duty that the latitude and discretion of city authorities in constructing and reconstructing streets and pavements is confined. And so whenever the street or pavement, after it has been constructed or reconstructed, is reasonably safe for pub-lie travel and is maintained free from dang’erous defects and obstructions, the city is not to be held accountable for accidents that may befall travelers merely because the plan or method of' construction was not as safe or accessible or convenient as it might have been. Accordingly, a city may build its streets and pavements on a grade to conform to the natural surface of the ground, or on an artificial grade, without, by reason of this fact alone, subjecting itself to liability to persons who may slip or fall oh account' of the grade, because the law .does
It has also been held in many cases, as said by this-court in Town of Elsmere v. Tanner, 158 Ky. 681, that “a. city is not the insurer of the safety of persons who travel its streets or sidewalks, and is not to be held-liable in. damages for every injury that may befall a traveler who-through thoughtlessness or negligence meets with some-accident. It often happens that people stumble or slip- and fall and hurt themselves while walking in safe places,, and no amount of care or dilligence on the part of a city- or town could enable it to prevent accidents of this sorL They happen every day in the year, to young as well as. old, and strong as well as weak, and if cities were required to insure the limbs and life of every person who-happened to get hurt on its streets, they would soon be-bankrupted by recoveries in damage suits. ’ ’ To the same-effect are Carroll’s Admr. v. City of Louisville, 117 Ky. 758; Breckman v. City of Covington, 143 Ky. 444.
It has also been laid down in many cases that if upon, the facts there are reasonable grounds for difference of opinion concerning the proposition whether the city exercised ordinary care to keep its pavements or streets in a reasonably safe condition for travel, the question is for-the jury; but if there is no reasonable ground for reasonable difference of opinion on this subject, the trial, court should rule the question as a matter of law; Town of Elsmere v. Tanner, 158 Ky. 681: City of Dayton v. Lory, 169 Ky. 94.
In this case, however, we think there was ample room for reasonable difference of opinion as to whether this-pavement was reasonably safe for public travel. Indeed, the decided weight of the evidence shows that it was.
The instructions are criticised, but we think they submitted fairly to the jury the issues in the ease. The contention, that the instruction submitting the question of contributory negligence was not in proper form, is not well taken. Eeally, it would not have been error to have failed to give any instruction on this subject, because Mrs. Graves was not guilty of any contributory negligence. She was walking on the pavement in the usual and customary way, -and she had the right to walk at the point where she fell. It is true, as we have said, that this was a dangerous place; that many people slipped and fell there; but many others walked over it without slipping or falling. It was more dangerous than it appeared to be. A traveler looking at it as persons of ordinary pruduenee ordinarily do look at pavements on which they are walking, would not know or appreciate the danger, because there was no defect in the pavement or its construction calculated to arrest the attention of the ordinarily careful pedestrian.
Mrs. Graves had a slight spell of temporary sickness on the day of the accident and.shortly before it happened, but there is no showing that this indisposition interfered with her ability to walk as she usually did, or with her capacity to take such care of herself as she generally exercised. And so there was no reason why the court should have given the offered instruction that if her illness or sickness contributed to or helped to cause the fall or injury, they should find for the city.
It is further said that as she had resided in Lebanon for more than nineteen' years and during that time had passed up and down Main street and over the point where she fell, she must have been acquainted with the dangerous condition of the pavement at this place and therefore assumed the risk of walking on it, and her negligence should defeat a recovery.
The general rule is that where there' is a defect in the pavement, or an obstruction such as can easily be seen and avoided, the question of contributory negligence is for the jury; City of Dayton v. Lowndes, 174 Ky. 707; Merchants Ice and Cold Storage Co. v. Bargholt, 129 Ky. 60; City of Ashland v. Boggs, 161 Ky. 728; City of Dayton v. Lory, 169 Ky. 94.
The case of the City of Covington v. Manwaring, 113 Ky. 592, is relied on by counsel for the city as announcing a different rule, but we think not. In that case, Manwaring sustained injuries, by falling upon the pavement when he struck his toe upon a brick that the root of a tree had pushed above the level of the pavement; and the court, under the exceptional facts of that case,'held that Man-waring should be charged with, notice of the condition of the brick which was within a few feet of the door of a store in which he worked, and consequently was not entitled to recover damages.. The facts of that ease are so very different from the facts of this that it cannot-be regarded as controlling authority.
It is further complained that error was committed in allowing the admission of evidence of other accidents at this place .by the witnesses who testified that they-had seen numbers of other persons slip and fall there before Mrs. Graves fell.
We have, however, adopted the rule laid down by the supreme court of the United States in District of Columbia v. Armes, 107 U. S. 519, 27 L. Ed. 618, where the court, in commenting on the admissibility of this kind of evidence, said:. “They were proved simply as circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The
“Besides this, as publicity was necessarily given to the accidents, they also tended to show that the dangerous character of the locality was brought to the attention of the city authorities.” Yates v. City of Covington 119 Ky. 228; City of Covington v. Westbay, 156 Ky. 839; City of Covington v. Visse, 158 Ky. 134.
It is further claimed that the city had no notice of the condition of this pavement; but there is no merit in this contention. The business house of Mr. Murray, who at the time of this accident had been the mayor of this city for some three years, was within a few feet of the place where Mrs. Graves fell, and other citizens, who had been for years, and were at the time of the accident engaged in business in the immediate neighborhood, were members of the council, and it is wholly improbable that the notoriety attending the use of this pavement on account of the numbers of persons who slipped or fell there, should not have been brought time and again to their attention. At any rate, when there has remained at one point in a pavement for three years a place so conspicuously unsafe and dangerous for public travel as this is shown to have been the city authorities cannot excuse their failure to remedy the condition upon the ground that they had no notice of it. It will be presumed they had notice.
We may also here add that the fault in this pavement was not so much in the grade as it was in the slippery surface of the pavement which-could easily have been remedied and which it was negligence to permit to remain.
Some other minor alleged errors are pointed out in brief of counsel for the city, but having sufficiently^ covered the case, and finding no prejudicial error, the judgment is affirmed.