165 Ky. 752 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
Alleging that the defendant, W. C. Woodward, placed on the traveled part of one of the public highways of Nelson County, with gross and wanton negligence, a large quantity of stone, with no lights, signals or guards of any kind to warn travelers of the obstruction, and that while driving along said highway in his buggy while it was dark, and without any knowledge of the existence of the obstruction, he ran into the pile of stone, and that his horse and buggy were damaged and he himself was injured, plaintiff, E. J. Ockerman, brought this action to recover damages. Defendant pleaded that he was a member of a firm that had been employed by Nelson County to reconstruct and repair its public roads, and that the' members of the firm, as the agents of Nelson County, placed the stone in the highway in the prosecution of such work.- By reply, plaintiff pleaded that the contract made by Nelson County with the defendant was made without competitive bidding and without following the statutes. He further alleged that defendant was an independent contractor. A demurrer having been sustained to this reply, plaintiff's petition was dismissed and he appeals.
It has long been the settled rule in this state that for personal injuries caused by defects in the public highways, neither the county nor its officers, agents or employes are answerable in damages. Moberly v. Carter Co., 5 Ky. Law Rep., 694; Hite v. Whitley County Court, 91 Ky., 168; 15 S. W., 57; 11 L. R. A., 122; Wheatley v.
“ It is the duty of the county to care for and maintain its public roads, and whether this work is done by hands employed by the day under the general supervision of a county official, or under the direction of a supervisor or contractor, is immaterial. The result is the same; the expense in either event being borne .by the county. And where, because of some defect in the work or in the manner in which it is done, an injury is sustained by one using the road, if a liability existed it would be the liability of the county, and not that of the supervisor, contractor, or other employe, and no recovery being allowed against the county, the trial judge correctly held that the petition did not state a cause of action.”
But it is insisted that in all of the above cases the negligent act was one of mere passive neglect and not of positive misfeasance, as in the case at bar, and, therefore, a different rule should prevail. In the present case it is admitted that the stone was placed in the highway
Judgment affirmed..