City of Louisville v. Carr

204 Ky. 119 | Ky. Ct. App. | 1924

Opinion of the Court by

Turner, Commissioner—

Affirming.

On the 24th of July, 1921, about seven o’clock in the morning, appellee, while walking along the sidewalk on. Frankfort avenue in Louisville, in front of the property of one Hubrich, stepped into and slipped upon some' green slime or mossy substance which had formed there, causing her to fall and break her hip.

She brought this action in damages against Hubrich and the city of Louisville, and on a trial was awarded a verdict against Hubrich for $300.00 in damages and against the city of Louisville for $800.00. The city alone appeals.

The theory of her action is that Hubrich had for some time permitted water to run from a leaky hose box in his front yard down through or about his gate on to the brick sidewalk, and that such leakage had existed for such a time as that it resulted in the formation of a green slime on part of the sidewalk, and that this condition had existed for such a time as that the city in the exercise of ordinary care should have known of the condition, and removed or remedied the same.

There is no complaint of the amount of the verdict if there is any liability whatsoever by the city.

The initial ground for reversal is that plaintiff failed to show such a continuous condition of slipperiness for such a length of time as that notice thereof should be imputed to the city, no direct notice being shown.

It may be admitted that the continuous slippery condition for a great length of time was not shown by the direct testimony; it was shown, however, by such testimony that it existed on the morning’ of the accident, had existed some days prior thereto and had existed at times for several weeks theretofore. But it is a well known fact that such a slimy condition is not of sudden or hasty formation, but requires the concurrence and continuous existence of certain conditions, and even then forms slowly and gradually. The evidence shows that the water escaped continually from the leaky water box and ran across the pavement at that point, that there was dirt or sand in between the bricks on the pavement, and that two trees in the yard and adjacent houses shaded that place at. all times until late in the afternoon of each day, and that it was quite warm weather. With all these conditions existing, and the evidence showing the slimy condition of the pavement at times for several weeks, and with the knowledge that such a condition is brought about solely by the continuous operation of these different things, the jury under such evidence was authorized to conclude that there had been a continuous existence of the slimy condition for several weeks, and for such a length of time as would impute notice to the proper city officials. Especially is this true in the light of the evidence that there existed only one square and a half from there a police substation, and the evidence that the police officers were required to patrol that square.

But it is said the city would not be liable if the slime was caused by natural conditions and was not habitually permitted to remain there. The evidence, however, distinctly negatives the idea that the condition could have been caused from natural causes; for it is disclosed not only that the water flowed continuously from the leaky water box across the pavement, but that at no other times except when there was a rainfall was the pavement wet, except when it was sprinkled about once every day.

It is true that Hubrich and other witnesses state the water box had not leaked until the very night before the injury, and testified to physical conditions tending to show that a continuous accumulation of the slime was impossible because of the frequent cleanings given to the sidewalk. Admitting the force of this evidence, yet it was not so convincing in the light of all the other evidence as to authorize a reversal of this judgment because the verdict is flagrantly against the evidence.

The distinction between the liability of a municipality for the slippery condition of a sidewalk when produced by natural causes, and when produced by artificial means, has been accurately pointed out by this court in the cases of Jaegar v. Newport, 155 Ky. 110; Stephens v. Deickmann, 158 Ky. 337; and Bellevue v. England, 118 S. W. 994.

There are several criticisms of the instructions, none of which do we deem it necessary to consider except one, for an examination of them discloses that they fairly and accurately submitted the issues. It is complained, however, that on the question of notice to the city officials the court should not have included the police officer on the beat as one through whom such notice might be imputed to the city. Section 2885, Ky. Statutes, being a. part of the charter for cities of the first class, among other duties, imposes upon police officers of the city the duty to

“remove all nuisances in the public streets, parks and highways.”

Clearly the existence of this green slime on a sidewalk of a city is a nuisance because it may at any time cause injury to a pedestrian; and it being under the statute the duty of a ¡oolice officer to remove such a nuisance from the sidewalk, any knowledge that may be imputed to him who owes such a duty must also be imputed to the city itself. Louisville v. Lenehan, 149 Ky. 537.

Judgment affirmed.