159 Ky. 223 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
Plaintiff, Robert Russell, brought this action against tbe City of Ashland and George Hunt to recover damages for the death of a horse, which he claimed was due to the negligence of the defendants in failing to put barriers or lights on the streets at the point where the horse fell, and where the streets were not in reasonably safe condition for public travel. At the conclusion of the evidence the court directed a verdict in favor of defendants. Plaintiff appeals.
In the summer of 1910 the City of Ashland was engaged in improving a number of streets by original construction. Among the streets being improved were 23rd, 24th, 25th and 29th Streets, and Central Avenue, Bath Avenue, Montgomery Avenue, Carter Avenue and Lexington Avenue. The work was being done by the Southern Bitulithic Company. George Hunt was in charge of the paving work under a subcontract with the Southern Bitulithic Company.
At that time Robert Russell owned a livery stable in the City of Ashland. Late in the evening of July 17,
The evidence further shows that all the streets in question were being torn up and improved about the same time, and that it was practically impossible to reach the place of the accident without becoming aware that the streets were in such condition that they were xxot being used for travel.
The two men who were driving the horse were not introduced as witnesses, though the stable man says that he saw one of them about three or four weeks before the trial.
One of the witnesses states that the horse was in a sweat when he examined him.
From the foregoing evidence it is manifest that no one could tell exactly what caused the death of the horse. For aught that appears, the two men in the buggy may have known of the condition of the streets at the place of the accident, and notwithstanding this fact attempted to drive the horse along the streets when they knew that it was practically impossible to do so. Then, too, the horse may have fallen in its tracks not because of any hole or obstruction in the streets, but because he had been driven to death. While there was some proof of negligence on the part of the city and its sub-contractor, the evidence fails to show that this negligence was the proximate cause of the horse’s death. Under these circumstances, the jury could do no more than guess at the cause of the accident, and the court, therefore, properly directed a verdict in favor of the defendants. Stone v. Van Noy Railroad News Co., 153 Ky., 240, 154 S. W., 1092; Louisville Gas Co. v. Kaufman-Straus Co., 105 Ky., 143.
But it is insisted that the trial court erred in refusing to award plaintiff a new trial on the ground of newly discovered evidence. The evidence relied on is contained
Judgment affirmed.