123 Ky. 621 | Ky. Ct. App. | 1906
Affirming.
This was an action by ~W. E. Zehe’s administrator against the city of Louisville to recover damages for the death of an infant 9 years of age who was drowned by the overturning of a wagon in a creek near the mouth of a sewer in said city. Plaintiff alleged that, by reason of the faulty construction of the sewer at the point where it emptied into the creek a deep hole had been made in the creek and that the driver of the wagon in which the boy was riding, not knowing of the presence of said hole, drove his horse into same, and the wagon was overturned, and the boy was drowned. The city’s plea was a traverse and a further plea of contributory negligence. The case was tried by a jury before a special judge, and, at the conclusion of the testimony, a peremptory instruction was given to find for the defendant, which was done. This was in May, 1900. Motion and grounds were filed for a new trial on May 10, 1900. On October 10, 1903, the motion for a new trial was overruled and plaintiff given 60 days to prepare and tender his bill of exceptions. .On December 7, 1903, plaintiff by counsel, tendered his bill of exceptions and moved the court for leave to file same, to which the defendant objected. This court thereupon gave plaintiff 30 days ’ additional time in which to complete the bill of exceptions. Upon January 7, 1904, upon motion of plaintiff, he was given 30 days’ additional time in which to complete and file his bill of exceptions. On September 25, 1905 the following order was made: “The court declines to sign the bill of exceptions, because the stenographic transcript of the evidence was not tendered within the thirty days allowed to complete his bill, thereby showing the court the evidence on the trial. [Signed] John S. Jackman, Special Judge.” The record shows that the evidence given on the trial of this case was taken by an official
The first question for determination is: Is there any bill of evidence in this case to be considered by this court upon review, and, if not, did the pleadings support the judgment? Section 1019a, Ky. St. 1903, provides for the appointment of an official court stenographer for courts of continuous ——--. And article 4 of said section provides for the appointment of a special reporter when the regular reporter for any reason does not serve. And article 8 thereof provides that the transcript or duplicate made by the reporter, and filed in the clerk’s office, when certified to be correct by the court, may be used in the Court of Appeals as part of 'the record in the action or prosecution in which the notes from- which it has been transcribed were made.
It appears from the record that the time for preparing the bill of exceptions was extended by the court in order to give plaintiff an opportunity to secure and file a transcript of the evidence offered during the trial. He was first given 60 days, then 30 days additional, and then 30 days more, and having
In the case of Cain v. Cain, 12 Ky. Law Rep. 635, the court held that the time for filing a Bill of exceptions in the Jefferson court of common pleas cannot be extended beyond 120 days after the order overruling the motion for a new trial. In that case the' motion for a new trial was overruled October 3, 1885, and the bill of exceptions was not signed until February 13, 1886, which was 130 days after the motion for a new trial was overruled. The court held that, ai: though the time was extended by the successive orders of the court, the bill could not be considered.
In the case before us the judgment became final October 10, 1903, and 60 days was given in which to prepare and tender the bill. On December 7, 1903, 30 days’ additional time was given, which expired on January 6, 1904. On January 7, 1904, 30 days’ additional time was given, which expired February 7, 1904. Under the Code, and under the ruling laid down in the above cited cases, no additional time could have been given by the court. The court had given him all the time which they could allow him, and appellant, within that time failed -to have filed what he offered as for his bill filed. It cannot, therefore, be considered as a part of the record in this case. In the case of Early v. Sutton, 74 S. W. 238, 24 Ky. Law Rep. 2381, this court held that where the record fails to show that time was given to’ appellant at the term at which his motion for a new trial was overruled to prepare and tender his bill of evidence and excep
The only question remaining for consideration is: Do the pleadings support the verdict? Appellant practically admits in his brief that if the bill of evidence is not admitted as part of the record, and con-' sidered on this appeal, that his appeal is lost. The answer in the case is a traverse, and a plea of contributory negligence. The petition itself is defective, and the trial court should have sustained a demurrer thereto, for the reason that it fails to charge that .the said defendant had notice of the dangerous condition of the creek at the mouth of the sewer, or, by the exercise of ordinary care, could have discovered its said dangerous condition or that it had remained in said condition for a length of time sufficient to charge the city with notice of such condition. These are essential allegations, which would have to be alleged and proven in order to entitle the plaintiff to recover. Our courts have gone quite far in holding municipal corporations to a strict responsibility on account of accidents caused by their failure to keep their streets and sidewalks in a proper and safe condition, but we know of no case in which it has ever been held that a municipal corporation is required to
The judgment is affirmed.