175 Ky. 395 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
Plaintiffs, Sadie O’Gara and her husband, M. J. O’Gara, brought this suit against the city of Dayton to recover damages for injuries to their property, alleged to have been caused by the negligent construction of a sewer in the street on which their property fronts. The city’s demurrer to the petition was sustained, and the petition dismissed. Plaintiffs appeal.
It appears from the petition that Sadie O’Gara is the owner of a house and lot on Terrace Avenue, a public street of the city of Dayton. By ordinance duly adopted, the city council ordered the construction of a
■ The demurrer was sustained on the ground that the city in constructing the sewer, was engaged in the performance of a governmental function, and was not, therefore, liable for injuries resulting .'from the negligence of its servants.
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. Twyman v. Frankfort, 117 Ky. 518, 78 S. W. 446, 25 R. 1620, 64 L.
“Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them, which compensation shall be paid before such taking, or .paid or secured at the election of such corporations or individuals, before such injury or destruction.”
Under this section, a city cannot take, injure or destroy the private property of a citizen without making just compensation therefor, and the mere fact that the property is injured while the city is engaged in the performance of a governmental function is wholly immaterial. We have frequently recognized the right of a property holder to recover damages for an injury to his property, caused by the negligent maintenance of a sewer, and we are unable to perceive any reasonable ground for distinction between an injury caused by negligent maintenance and an injury caused by the negligent manner in which the sewer is constructed. Toebbe v. City of Covington, 145 Ky. 763, 141 S. W. 421; City of Maysville v. Brooks, 145 Ky. 526, 140 S. W. 665; Pickerill v. City of Louisville, 125 Ky. 213, 100 S. W. 873; Louisville v. Norris, 111 Ky. 903, 64 S. W. 958, 98 Am. St. Rep. 437. Indeed, the authorities generally recognize the rule that the corporation is responsible in a civil action for damages caused by the carelessness and unskillful manner of performing the work. Keithsburg v. Simpson, 70 Ill. App. 467; King v. Kansas City, 58 Kansas 334; Googin v. Lewiston, 103 Me. 119; Ashley v. Port Huron, 35 Mich. 296.
But it remains to determine whether the injury to plaintiff’s land was an injury within the meaning of the constitutional provision. In the case of the City of Henderson v. McClain, 102 Ky. 402, 43 S. W., 700, it was held that the common law rule that municipal corporations having authority to make public improvements are
It follows that the demurrer to the petition should have been overruled.
Judgment reversed and cause remanded for proceedings consistent with this opinion.