172 Ky. 429 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
At about five o’clock on tbe afternoon of March 17, 1913, tbe appellant, Willie Ann Tudor, was coming out
A written answer was filed by each of the defendants denying the allegations of the petition and affirmatively pleading contributory negligence. There was also an order controverting the pleadings of plaintiff of record. A trial resulted in a verdict for each defendant, which was rendered upon a peremptory instruction from the court directing it, and, to reverse that judgment, this appeal is prosecuted.
Before considering the merits of the case, it should be stated that no appeál has been prosecuted from the' judgment in favor of the McDowell estate, and we fail to find any testimony in the record showing that the F. W- Woolworth Company even occupied the building, much less that the grating was maintained for its bene-fit as a tenant either of the building or of its basement. As the pleadings put these facts in issue, it was incumbent upon the plaintiff to offer some proof in support of these necessary facts to render that defendant liable. As
The rule in this state, as established by an unbroken line of cases, is that a municipality must exercise ordinary care to keep and maintain its streets and sidewalks, after they have been taken over by the city, in reasonably safe condition for the character of travel for which they are intended, and if it should fail to do this it will be liable to the one suffering damages thereby. West Kentucky Telephone Co. v. Pharis, 25 Ky. Law Rep. 1838; City of Harrodsburg v. Abraham, 125 S. W. 758; City of Covington v. Belcer, 123 S. W. 249; City of Louisville v. Haugh, 157 Ky. 643; Gnau v. Ackerman, 166 Ky. 258; Eagan v. City of Covington, Idem, 825, and cases referred to therein. It is neither a guarantor of the perfect condition of the streets and sidewalks nor of the safety of the traveler on either. Elam v. City of Mt. Sterling, 132 Ky. 657; Varney v. City of Covington, 155 Ky. 662; City of Ashland v. Boggs, 161 Ky. 728.
The negligence for which the municipality may be rendered liable consists of acts of misfeasance and nonfeasance. The former includes faulty construction of the street or sidewalks so as to render them dangerous for travel, while the latter consists of a failure to repair the street or sidewalk after construction, and after becoming unsafe. Of the latter class of negligence, if any, is the one to which the instant case belongs, and the rule in this state is firmly settled that in order to fasten upon the municipality liability for an omission to repair the unsafe condition of the street or sidewalk it must have either actual or constructive notice'of the defect, and such constructive notice is established when the evidence shows that the defective condition, although not actually known by the city, could have been known by the exercise of ordinary diligence and care on its part. If the defect or obstruction had existed for such a length of time as to have afforded to the authorities of the city a reasonable opportunity to have discovered it,'it would be charged with constructive notice. City of Louisville v. Lenehan, 149 Ky. 537; City of Ashland v. Boggs, 161 Ky. 728; Bosler Hotel Co. v. Speed, 167 Ky. 800.
. Applying these legal principles to the facts of this case, we find that there is no testimony in the record as to who constructed the iron grating upon which plaintiff slipped, nor is there any testimony to show how long it'
Appellant, however, relies upon the case of City of Carlisle v. Secrest, 25 Ky. Law Rep. 336. In that case it appeared, by both alleg-ation and proof, that the sidewalk where plaintiff fell “was mude of rough rock slabs, which had, by long usage, become very uneven, some of them slanting down towards the property line, and having holes several inches in depth between them. ’ ’ The- walk was several feet above the adjoining property, and on one of the slabs which.had worn to a, slick surface, and slanting toward the edge of the walk, the plaintiff slipped and fell off the walk to the ground below, sustaining the • injuries for which he sued. The right of the plaintiff to recover therein is not predicated upon the isolated fact that the piece of stone composing a part of the walk had become slick by constant use, but the other conditions [which we have enumerated were factors in causing the ’court to conclude that the walk at that point was not
In addition to the case relied on, which we have just considered, we are referred to the case of Cremarty v. City of Boston, 127 Mass. 329, and Roe v. Mayor of the City of New York, 4 N. Y. S. 447. But we do not regard the facts in those cases as being analogous to those here involved. In fact, the New York case is one where the original construction was found'to be in itself, dangerous, and consequently it can have no bearing upon the. case before us.
Cases from this court with somewhat similar features to this one are Carroll’s Admr. v. City of Louisville, 117 Ky. 758; City of Louisville v. Uebelher, 142 Ky. 151; Breckman v. City of Covington, 143 Ky. 444, and McCourt v. City of Covington, Idem, 484. In the Carroll case the plaintiff’s decedent was killed by his horse slipping and falling while he was riding over the railroad crossing in the city of Louisville at the intersection of Third and “A” streets. That crossing had been constructed by placing steel rails parallel and about three inches apart and- filling in between them with cement and concrete. The rails were not covered with either cement or concrete, and it was charged that the tops of the rails( were slick and caused the decedent’s horse to slip and fall. In denying the right of plaintiff to recover, and after stating that the city could not construct its streets or sidewalks in accordance with a plan which would be “palpably unsafe to travelers,” the court said:
“But when the plan is one that any prudent man-might approve, or where it would be so doubtful upon the facts whether the street, as planned or ordered by the. city governing board, was dangerous or unsafe or not, that different minds might entertain different opinions with reference thereto, the benefit of the doubt should be given the city, and it should not be held liable. ’ ’
In the Uebelher case it was claimed that the street was unsafe because constant travel had made a concave depression in ofie of the blocks of stone' out of which the
“If it was only an inch and a half or two inches, a smooth worn, place in the stones, it would not be in such a condition as indicates neglect of the crossing by the city. The city does not insure the safety of its streets, and it is not reasonable to place upon it the burden of maintaining at all times and under any hazard every street Grossing and sidewalk in a perfect condition. It is only required to be reasonably safe for use as a footway for pedestrians. There must be some point short of perfection, therefore, that is not actionable negligence. We know as a matter of common knowledge that such depressions in a street as slight unevenness, caused by wear, of an inch or so are quite common in all cities. That which is so customary may be regarded as ordinarily safe, and that is the standard.”
In the Breckman case the plaintiff slipped upon a smooth piece of stone one and eight-tenths feet wide, and slanting some three and one-half inches, which caused her to fall, sustaining the injuries for which she sued. This piece of stone or step in its slanting condition Was a part of the sidewalk of the city of Covington, but led into a storehouse from which plaintiff was coming at the time she fell. The trial court gave a peremptory instruc-, tion to find for the defendant, which was sustained by this court, and, after reviewing a number of authorities,' it is said in the opinion:
“Under the testimony of the case at bar, we cannot say that the walk was obviously dangerous. All such sidewalks are more or less dangerous when wet, but that is not a condition which would render a city liable in damages to persons who fall thereon and injure themselves.”
In the McCourt case facts are found very similar to •the ones we have here; the plaintiff in that case slipped upon a covering of a catch basin made of metal but perfectly smooth and so placed in the walk as to make a perfectly even surface, and it had been so constructed for many years. The complaint was that this material in its smooth and slick condition was dangerous, or at least much more unsafe than if the covering had been made
“Appellant’s complaint really amounts to this, that the city is liable because it did not adopt a covering for the catch basin as safe as could be made, and keep cmd maintain it in this condition. Such is not the law; on the contrary, the city is only required to use reasonable care to construct its public ways so as to make them reasonably safe for travel. ’ ’
In the light of these authorities, and the rules governing the liability of municipalities in such cases, we fail to discover any error committed by the court in instructing the jury to find for the defendants. As stated, there is no defect in the sidewalk at the point complained of except that it was slick, and was, some months afterward, found to be slightly loose. Nothing is shown as to when these conditions arose, and no fact from which even constructive notice might be imputed to the city, conceding that the testimony shows a dangerous condition. The only evidence of such condition is the fact that the plaintiff: slipped and fell. If this, alone, is sufficient tp establish a dangerous condition, and one for which the city is liable, then indeed should a note of alarm be sounded lest all municipalities should become bankrupt because of damage suits. We are not prepared to endorse such contention, for, under the rule which we have seen, the city must maintain its walks only in a reasonably safe condition; to require it to maintain them so that no one, under any circumstances, would slip or fall while using them, would impose a burden upon the city well nigh impossible of performance, and consequences clearly intolerable.
We would not be understood' as holding that a city would not be liable under any circumstances because of smoothness and slipperiness of a sidewalk, either as originally constructed, or becoming such by use, resulting in its becoming dangerous or unsafe for travelers. If such conditions, accompanied with such danger, are shown to exist, the place could not be said to be reasonably safe, under the law, and if a city has actual knowledge thereof, or constructive knowledge, as herein defined, its liability would be thereby established.
Being convinced of the correctness of the judgment it is affirmed.