132 Ky. 657 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
The appellant in his petition to recover damages for personal injuries received alleged that the city of Mt. Sterling, by its officers and agents, negligently and carelessly placed and permitted to remain on Richmond street, in said city, two large piles of crossing stones directly opposite each other on each side of the street, so close to the route of travel as to
The testimony established, in substance, that the city, desiring to make a foot crossing out of stone across the street, employed a contractor to do the work, and this contractor on Saturday, the 22d of February, hauled crossing stones to the point where the crossing was to be laid, and placed them in the street close to the curbing of the sidewalk and parallel with it. The stones, four in number, were six feet long, four feet wide, and four inches thick; two being placed on each side of the street, one on top of the other. They were not on the traveled or macadamized part of the street, and the space in the street for vehicle travel between the stones was some 15 feet. It was the intention of the contractor to lay the stone walk on the Monday following, but rain and other pressing engagements delayed him in the work, and
It is the contention of the appellee that the offered evidence that the stones were reasonably calculated to frighten horses of ordinary gentleness was prop1erly excluded, because there was no averment in the petition to this effect. It is further insisted that, in omitting to state this fact, the plaintiff failed to set out a cause of action, and a demurrer to the petition should have been sustained. As the cause of action was necessarily grounded upon the proposition that the stones were calculated to frighten horses of ordinary gentleness, it seems to us the petition should have contained this or a like averment. Placing the stones in the street was not in and o'f itself an act of negligence. The negligence, if any, consisted in the fact that the stones were calculated to frighten horses of ordinary gentleness. If they were not calculated to do this, it was not negligence to place them in the street, and travelers would have no cause of action
Without passing upon the correctness of the rulings of the trial court in respect to the evidence offered and rejected1, we will proceed to consider the question whether or not placing the stones in the street and permitting them to remain there for the time mentioned was an actionable nuisance. It is elementary doctrine that cities and towns must keep their streets, and all parts of them, in reasonably safe condition for public travel; but streets can only be kept in reasonably safe condition for public travel by improving and repairing them. And, if it becomes necessary to improve or repair streets, the municipal authorities must of necessity have the right to put in the streets the paaterial needed to improve and repair them, as well as the implements and machinery that it is requisite or proper to use in this kind of work. It would be most unreasonable to impose upon a city the duty to improve and repair, and at the
Cities are not liable for every accident or injury that happens because horses take fright at objects on the side of the street. As said in 2 Dillon on Municipal Corporations, section 1019: “From what has already been said it follows that a municipal corporation is not an insurer against accidents upon the streets and sidewalks; nor is every defect therein,, though it may cause the injury sued for, actionable. It is sufficient, we think, if the streets, which include sidewalks and bridges thereon, are in a reasonably safe condition for travel in the ordinary modes by night as well as by day; .and whether they are so or not is a practical question, to be determined in each case by its particular circumstances'.” Generally, th'e question whether or not an object is one calculated to frighten horses of ordinary gentleness is for the jury, but there are exceptions to this rule, and we think the case before us affords an illustration of
We have examined the cases cited by counsel for appellant, as well, as others along the same line, and they are not in conflict with the views we have expressed. In Fugate v. City of Somerset, 97 Ky. 48, 29 S. W. 970, the piles of lumber at which the h'orse became frightened were placed at right angles with
Upon the whole case, we think the trial judge correctly ruled as a matter of law that the placing and leaving of the stones in the street was not an actionable nuisance.
"Wherefore the judgment is affirmed.