| Ky. Ct. App. | Oct 27, 1910
Opinion op the Court bt
Reversing.
Scholtz and Vogt, as partners, contracted with the city of Louisville to put in a sewer on Broadway in the year 1908; and to do this had to dig a ditch six and a half feet wide and from ten to fifteen feet deep. The six inch water main of the water company ran parallel with the ditch. The main was not straight; at some places it was two feet from the ditch and at others it protruded over on the ditch. The contractors shored up the earth with plank to keep it from caving in during the digging of the ditch. There were three breaks of the water main which flooded it, and the contractors brought this suit against the water company to recover the damages they sustained thereby, alleging that by the first break,
The jury had simply misunderstood the instructions of the court, and were properly sent back to their room by the court to correct the verdict, which was in violation of the instructions. The case of Brown v. Morris, 66 Ky. 81" court="Ky. Ct. App." date_filed="1867-01-07" href="https://app.midpage.ai/document/brown-v-morris-7130462?utm_source=webapp" opinion_id="7130462">66 Ky. 81, is not in point. In that case the jury did not correct the verdict. There being simply a misunderstanding here, there is no reason for setting aside the verdict of the jury after the meaning of the instructions was stated to them by the court.
There is no complaint as to the admission, of evidence or the instructions of .the court to the jury. The only remaining complaint is .that the verdict is not sustained by the evidence. The evidence shows sufficiently that the second break and the third break of the main were due to the negligence of the water company. The water company knew when the first break occurred that the pipe was defective, and there is sufficient evidence that it did not exercise ordinary care after it had knowledge of the defectiveness of the main. The evidence also sustains the finding of the jury, fixing the damages for the second and third break at $795.00. But the evidence does not sustain the verdict of .the jury as to the first break, or allowing $180.00 damages for it. While there is some evidence in the record that the main was defective from rust and an old crack, there is nothing in the record to show that the water company knew this, or by ordinary care could have known it, before the break occurred, and all the facts in the record leave little doubt in our mind that this break was due to the settling of the ground from the digging of the ditch so
Judgment reversed and canse remanded to the circuit court with directions to enter a judgment in favor of the plaintiffs upon the verdict for $795.00.