119 Ky. 753 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
This action was. instituted by the appellant against the appellees to recover damages for the death of a horse, which in straying upon the distillery premises of the appellee’s, fell into a cistern and was- drowned. The distillery grounds front on the Bardstown and Loretto turnpike in Nelson county, and are uninclosed. The cistern in which the appellant’s horse was drowned is situated in the rear of the distillery buildings, and nearly 100 feet from the pike, and is used 'for supplying the distillery with water when in operation. The water with which the cistern is filled is conducted into it by a pipe connecting it with a nearby spring. According to the evidence the appellant’s horse escaped from liis lot or field, on the night of June 27, 1908, and went up
The question presented by the appeal is interesting because of its novelty and the zeal with which counsel have urged their respective contentions. We find in Thompson’s Negligence, vol. 1, § 938, this statement of the law on this subject: “In most of the States of the American Union, with the exception of some of the Eastern States, the com
In our opinion the cistern was not dangerous per se. It was in the rear of the distillery building, from 80 to 100 feet from the pike. It will be found that only one witness said the water in the cistern could be seen from the pike; others said it was not visible from the pike. Several witnesses testified that planks were kept upon the cistern. One witness (N. R. Boon) says that it was covered with not less than nine pieces of timber. J. C. McKelvey was the revenue officer in charge of the distillery at the time appellant’s horse was killed. He first discovered it in the cistern, and from his testimony it is evident that the timber or covering of the cistern was displaced by the horse when he fell into it, for he stated that some of the pieces had fallen into the cistern and others were projecting over it, and others .still were lying by it on the ground. It is manifest, therefore, that some precautions had been taken by appellees
We are therefore of the opinion that the trial court did not err in granting' the peremptory instruction. Wherefore the judgment is affirmed.