Mitchell v. Brady, &C.

• Decision Date: 23 January 1906
• Parties: Mitchell v. Brady, &c.
• Court: Kentucky Court of Appeals

124 Ky. 411

Mitchell v. Brady, &c.

Court of Appeals of Kentucky.

January 23, 1906.

Appeal from Jefferson Circuit Court; Common Pleas Branch (Second Division).

J. C. DODD, Special Judge.

From the judgment dismissing his petition plaintiff appeals. Affirmed as to the City of Louisville. Reversed as to the other defendants.

WILLIAM FURLONG, attorney for appellant United Laundry Company.

BENNETT H. YOUNG and MARION W. RIPY, attorneys for appellant.

OPINION OF THE COURT BY JUDGE HOBSON.

Hugh Brady is the owner of a brick building located on the northeast corner of Sixth and Broadway streets in Louisville. He rented the building to the United Laundry Company, which used part of the lower floor as an office and sublet the remainder of the building to Mrs. Mary Donnelley, who in turn sublet two rooms to W. E. Mitchell, in which he lived with his family. Attached to the building there was a tin down pipe to take the water from the roof. The down pipe extended down the wall of the house on the Sixth street side and about five feet above the sidewalk it entered an iron down spout, the lower end of which rested on a metal gutter which extended across the sidewalk through which the water was conveyed to the sewer. The iron pipe was about five feet long and something like six inches in diameter, half round in shape, the flat side being placed against the side of the house which abuts immediately upon the sidewalk. The iron pipe weighed about 80 pounds. On June 3, 1903, Mitchell's little son three year old, was on the sidewalk in charge of his mother who was near by, when the iron pipe, without warning, fell down, striking the child upon the head and killing him almost instantly. W. E. Mitchell qualified as the administrator of the child, and brought this action to recover for his death against Hugh Brady, the owner of the property, the United Laundry Company, who leased it from him, and the City of Louisville, charging that the iron spout was permitted to become and remain in a dangerous condition, and that this was known, or could have been known to the defendants by ordinary care on their part; that the sidewalk was in a dangerous condition from the iron spout overhanging it without being properly secured, and that this dangerous condition had negligently been allowed to continue for a long time. The defendants filed answers controverting the allegations of the petition, and the case was heard by a jury. At the conclusion of the plaintiff's evidence the court peremptorily instructed the jury to find for the defendants, and, the plaintiff's petition having been dismissed, he appeals.

The proof heard on the trial established without doubt the facts above stated. It also showed that the only fastening securing the iron pipe in position was a wire at the top which was wrapped around a nail on either side; that the wire had become rusted and the mortar had been washed out so that the nail on one side had nothing to hold it and had come out, allowing the pipe to fall and strike the child, who happened to be just then near by on the pavement. In the contract between Brady and the laundry company, the property was leased by him to it for five years and it was obligated to keep the premises in repair and not to permit any part of it to become unsafe or dangerous. There was no evidence tending to show notice on the part of the city of the dangerous condition of the spout, and, as the danger came from the defective condition of the house and not from any defect in the sidewalk, the peremptory instruction as to the city seems to have been proper, but as to the other defendants, a different rule applies. In Shearman & Redfield on Negligence, sec. 347, the rule is thus stated: "It is therefore, the settled doctrine on this subject that, if an abutting owner makes an excavation upon his land adjacent to, or near a highway, and leaves it unprotected, he is liable to a traveler on the highway, who, while using ordinary care, falls into it and is injured. So, if he erects a building upon or near a street, he is under a legal obligation to take ordinary, reasonable care that it shall not fall into the street and injure persons lawfully there, and a ruinous wall or other structure likely to fall is a nuisance, and, if the structure falls into the street and injures a passer-by after a reasonable time to repair or remove it has elapsed, the owner is liable to the injured person." The same rule is laid down in 1 Thompson on Negligence, sec. 1213, in these words: "If the owner of a house has constructed it in so faulty a manner, or suffered it to get out of repair, so as to endanger persons passing along the street, it becomes a nuisance, and, on familiar grounds, he is liable to any person sustaining special damage thereby." The rule has been applied in many cases,...