175 Ky. 817 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
Herbert Flutmus brought this suit against the city of Newport to recover damages for personal injuries. A de
The allegations of the petition are, in substance, as follows: Newport is a city of the second class and maintains a waterworks system, with its pumping station in Campbell county on the Ohio river, about seven miles from the city. The city not only furnishes its own inhabitants with water, but sells and furnishes water to the Union Light, Heat & Power Company, which in turn sells and furnishes it tb the cities of Bellevue, Dayton and other municipalities. A part of the machinery used in the pumping station is located beneath the station and is reached by three flights of stairs to a platform, and from the platform by what is known as a cistern. Some time prior to the accident, the bolts which fastened one of the steps of the last flight came out and the step became loose, thus making it dangerous for use. Such condition was known, or could, by the exercise of ordinary care, have been known, to the defendant, its officials and servants in time to have repaired the step before the accident. Notwithstanding this knowledge, defendant carelessly and negligently permitted said step to remain in such dangerous condition until after the accident. On December 6, 1915, while in the employ of the William T. Johnson Company, of Cincinnati, plaintiff was engaged in repairing a part of the machinery of the pumping station. While so engaged it was necessary for him to go down the steps heretofore described, and when he reached the loose step it turned and threw him to the bottom of the stairs, and he was thereby seriously and permanently injured.
It may be conceded that it is the established law of this state that a city is not liable for personal injuries caused by the negligence of its servants engaged in the discharge of a governmental function. . O’Gara v. City of Dayton, 175 Ky. 395; Twyman v. Frankfort, 117 Ky. 518, 78 S. W. 446, 25 R. 1620, 64 L. R. A. 572, 4 Ann. Cas. 622; Kippes v. Louisville, 140 Ky. 423, 131 S. W. 184, 30 L. R. A. (N. S.) 1161; City of Bowling Green v. Rogers, 142 Ky. 559, 134 S. W. 921, 34 L. R. A. (N. S.) 461; Allison v. Cash, 143 Ky. 679, 137 S. W. 245; Smith v. Commissioners of Sewerage, 146 Ky. 562, 143 S. W. 3, 38 L. R. A. (N. S.) 151.
But it is equally well settled that a municipal corporation has two classes of powers — one legislative and governmental, in the exercise of which it is a sovereignty and governs its people, and one conferred upon
Since the liability of the city in a case like this is the same as that of a private owner of a waterworks plant, it remains to determine whether a private owner is liable under the circumstances set forth in the petition. In such a case, the liability of the owner turns on whether the person injured is a bare licensee or is on the premises by invitation of the ownér. If the former, he enters the land at his own risk and must take the premises as he finds them, and the owner owes him no duty except
Judgment reversed and cause remanded for proceedings consistent with this opinion.