Town of Bellevue v. Rentz

152 Ky. 426 | Ky. Ct. App. | 1913

Opinion of the Court by

Chief Justice Hobson

Beversing.

Mayme Bentz brought this suit against the Town of Bellevue and Edward J. Knepfle, charging in her petition that Knepfle while reconstructing Fairfield Avenue under authority of the city, placed on the outer edge of the sidewalk, bags of cement, and put over them a canvas cover anchored in position iby large paving bricks which extended over and upon the sidewalk; that while walking along the sidewalk, she stepped upon one of these bricks, and sprained ber ankle. The defendants filed an answer controverting the material allegations of tbe petition, and'tbe case being submitted to a jury there was a verdict and judgment in favor of tbe plaintiff for $230 against both of the defendants. They appeal.

The facts of the case are these: The city of Bellevue made a contract with Knepfle to reconstruct' the carriage way of the street, and authorized him to use the outer four feet of the sidewalk with Ms building material, but required him to leave unobstructed _the other seven feet of the sidewalk. He piled Ms cement and brick upon that part of the sidewalk which the city authorized him to use, being the grass plot between the pavement and the curb. According to the proof for the plaintiff, the canvas cover which was placed over the cement extended over on the pavement, and the bricks which were placed upon the canvas to hold it down, were within the seven feet of the pavement which under the orders of the city he was not allowed to use. According to the -proof for Knepfle, the bricks were placed up against the bags of cement, and were not out upon the pavement. The bricks had been placed there that afternoon after the work ceased by tbe guard whom Knepfle left in charge, and the accident to the plaintiff happened soon after dark. According to the proof for the plaintiff the injury to her was due to her stepping on one of these bricks but the defendants’ proof tended to show that there was a gutter there, and that she sprained her ankle on the gutter. There was no proof that the city knew or had reason to anticipate that these bricks would be placed in the sidewalk.

We have held in several cases that where the city authorizes work to be done, or a part of a street to be obstructed while the work is going on, it must take notice of the obstruction which it has authorized, and see that the highway is kept reasonably safe. (City of Louisville v. Keher, 117 Ky., 841; Board of Councilmen v. Allen, 26 R., 583; Blocher v. Dieco, 99 S. W., 606; Grider v. Jefferson Realty Co., 116 S. W., 691.) We see no reason for a distinction between the case where the city gives the permit to a property owner who is improving his own property, and the case where the permit is granted to an independent contractor who is reconstructing the street. In either case the obstruction is placed in the street by authority of the city and in either case, the city is equally bound to take notice of what it has authorized to be done. But the authority of the city to do one thing is not authority for the doing of another thing. While the city must take notice of obstructions which it authorizes, it is not required to anticipate that the person receiving the permit, will exceed his authority and do that which he is not authorized to do. No one is required to presume that another will act unlawfully, and this rule applies to -cities as well as individuals. When the city authorized Knepfle to obstruct the grass plot with his cement, it was not required to anticipate that he would put brick on the pavement, which was to be left free and unobstructed. In the Keher case above cited, the obstruction had remained for weeks and the city had notice of it. In District of Columbia v. Woodbury, 136 U. S., 450, cited in the Keher case, the city had granted a permit for the digging of a hole in the sidewalk, and it was held that it was its duty to see that the hole was lighted or protected. In Board of Councilmen v. Allen, as in the Keher case, the danger was known to the city, and had been acquiesced in by it. When the city authorizes by permit a thing to be done, it should -anticipate those things which are a reasonable and natural consequence of the doing of the thing; and where it permits brick to be negligently piled near the sidewalk, so that they fall upon it, it may be held asnsweralble on this ground, as in Blocher v. Dieoo above cited. But we see no sound reason for holding the city, liable, where it has not authorized the thing to be done, does not know it has been done, and has no reason to anticipate it will be done. iSu'dh was in fact the case of Hazelrigg v. Board of Councilmen of Frankfort, 92 S. W., 584, where rock were placed by a contractor in the street a few hours before the accident, without the knowledge of the city. We therefore conclude that the city’s motion for a peremptory instruction should have been sustained.

As to Knepfle there was sufficient evidence to take the case to the jury, but the court erred in submitting the case to the jury, in that by his instructions matters Were submitted outside of the pleadings; the piles of cement did not cause the plaintiff’s injury, and there is no complaint of them in the petition. The complaint is of the bricks placed on the sidewalk. The real issue in the case is whether the bricks were placed as shown by the evidence for the defendant or as shown by the evidence for the plaintiff. In the former state of case they could not have caused the injury as plaintiff Va.s walking on the pavement, and far enough from the cement to fall upon it when her foot gave way. In the latter state of case the bricks were a nuisance. This issue should be sharply presented to the jury by the instructions. In lieu of the first instruction on another trial the court will tell the jury in substance that if they believe from the evidence that the defendant, Edward. Knepfle or his servants or any of them, placed bricks upon the pavement, extending out beyond the bags of cement, and rendering the pavement not reasonably safe; and that the plaintiff by reason thereof, was injured, without negligence on her part as set out in No. 4, they should find for her. In lieu of the second instruction he will tell the jury that unless they find as set out in No. 1, they should find for the defendant. The pther instructions are correct.

Judgment reversed and cause remanded for further proceedings consistent herewith.