191 Ky. 585 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
This action by the appellee, Margaret E. Sehmit, against the appellants, City of Newport and the Frankel Amusement Company, had for its .purpose the recoveiy of damages which she avers that she sustained on account of personal injuries received when she slipped and fell upon the sidewalk in front of the theater owned, conducted and controlled by the Frankel Amusement Company, and which bore the name of the “Hippodrome.” The sidewalk, at the point where the appellee’s feet slipped from under her and she fell upon it, is about 12% feet in width, and all of it is constructed of cement, except a strip 27 feet in length and 3 feet in width, which immediately adjoins the property line in front of the entrance to the theater, and extends into the sidewalk to the distance of 3 feet, and this strip is made of tile®. The entrance into the theater from the sidewalk is through a lobby, which is also paved with tiles, and the portion of the sidewalk made of tiles is a continuation of the floor of the lobby. The basis of the claim for recovery, as alleged in the petition as amended, is that the sidewalk upon which the appellee fell and was injured was a sidewalk in the city, under its management and control through its officers, whose duty it was to maintain it in a reasonably safe condition for travel by pedestrians, and, though under such duty, the city permitted the Hippodrome Amusement Company, which in April, 1915, erected the building in which the theater is conducted, to remove the cement sidewalk in front of the building and adjoining its property line, to a width of 3 feet and a length of 27 feet, and to substitute for the removed cement a surface made of smooth, glazed and slippery tiles, with a grade from the property line to the cement pf % inch to the foot, and that the portion of the sidewalk
(a) At the conclusion of the evidence for the plaintiff, and at the conclusion of all the evidence, each of the defendants moved the court for a directed verdict in its favor, and these motions being overruled, each of them now insists, as a common ground for the reversal of the judgment, that the court 'erred in thus disposing of their motions. It is not contended nor insisted for either of the defendants that the time which had expired from the construction of the tiled portion of the sidewalk to the time of the injury or from the time the theater came under the control of the Frankel Amusement Company to the time of the injury, was insufficient to charge the defendants with notice of its unsafe and dangerous condition, and to have enabled them, with the exercise of ordinary diligence, to have remedied the alleged unsafe condition, but it is insisted for each that the evidence was insufficient upon the issue as to the unsafe condition for travel of the sidewalk to require a submission to the jury. It may be confessed, that, if there were no contradictions in the evidence upon that subject, and all of the evidence conduced to prove the conclusions drawn from it, by counsel, for defendants, they were 'eminently right in their contention, but when the evidence as to the character of the tiled portion of the sidewalk, with regard to its condition of safety for travel, is examined, it is apparent that the evidence upon that subject is. very contradictory and made necessary a submission to the jury of that issue, and the fact that we would arrive from the evidence at a conclusion different from that at which the jury arrived, is aside from the subject, nor will a conclusion upon our part, if .we had been the triers upon the facts, that the verdict should have been upon the issue for the defendants, warrant a conclusion that the issue ought not to have been submitted. While it is not expressly proven that the city authorized the owner of the theater to extend the tile floor of the lobby out into the sidewalk to the distance above stated, such may be inferred from the fact that the work was done under the supervision of an inspector of the city, but whether the city was or was not consulted in the matter is immaterial, since the duty of a municipality to keep aucl maintain its sidewalks in a reasonably safe
(b) In additionjfco the foregoing ground it is insisted for the Frankel Amusement Company that a verdict should have been directed in its favor, because of a failure of the evidence touching its connection with the property. The petition alleged that the Hippodrome company when the owner of the building extended the floor of the lobby into the sidewalk, as heretofore stated, and the Frankel Amusement Company thereafter assumed the O'wnership, occupancy and control of the building, and appropriated the use of the tiled portion of the sidewalk for its special use and benefit, and that of its business, and maintained the tiled portion of the sidewalk in its dangerous and-unsafe condition for travel. If that portion of the sidewalk was in the condition contended for by appellee, it was a public nuisance, and both the creator and the maintainer of such nuisance are liable for the damages resulting to persons therefrom, if it was a nuisance when created; but if not a nuisance when created, if it thereafter became such by failure and neglect to maintain it in a reasonably safe condition for public
(c) The appellee, as the consequences of the injury, was unable to do any work for more than a year. ThS evidence for her proves that her right arm is permanently disabled, her right kneecap was fractured by the fall, and a considerable unnatural growth has come upon it, which renders the injury to it, a permanent one. She suffered and has continued to suffer a great deal of pain. At the time of the injury her avocation rewarded her with $12.00 to $14.00 per week, and after a year of total inability to work, she is now unable to earn more than $1.0.00 to $12.00 per month, and at a much higher rate of wages than existed at the time of the injuries. She has to have assistance in dressing her hair and bathing her person, on account of the injury to her right qfen, which she cannot elevate from her side. The injury to her knee renders her unable to stand for any considerable length of time, or to rest upon her knee. Hence, we cannot say, that the damages allowed were excessive.
The judgment is therefore affirmed with damages.