Bickel Asphalt Paving Co. v. Yeager

• Decision Date: 26 September 1917
• Citation: 176 Ky. 712,197 S.W. 417
• Parties: BICKEL ASPHALT PAVING CO. ET AL. v. YEAGER.
• Court: Kentucky Court of Appeals

197 S.W. 417

176 Ky. 712

BICKEL ASPHALT PAVING CO. ET AL. v. YEAGER.

Court of Appeals of Kentucky.

September 26, 1917

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Guy C. Yeager, by his next friend, against the City of Louisville, Pittsburg Coal Company, the Louisville Street Railway Company, and Bickel Asphalt Paving Company. Motion of defendants Louisville Street Railway Company and Pittsburg Coal Company for peremptory instructions sustained, and judgment against defendants Bickel Asphalt Paving Company and City of Louisville, and they appeal. Judgment affirmed as to the City of Louisville and reversed as to Bickel Asphalt Paving Company, and new trial granted.

Pendleton Beckley, Humphrey, Middleton & Humphrey, and J. W. S Clements, all of Louisville, for appellants.

Edwards Ogden & Peak, of Louisville, for appellee.

SAMPSON J.

Guy C Yeager, a boy between nine and ten years of age, residing in the city of Louisville, Jefferson county, Ky. while riding a bicycle on Bardstown road, near the intersection of Sherwood avenue, fell from his wheel under a coal cart of the Pittsburg Coal Company, which ran over and severely injured him in his limbs and other parts of his body. To recover damages for the injury he, by his father, W. C. Yeager, as next friend, instituted this action on the 18th day of February, 1915. The city of Louisville, Pittsburg Coal Company, the Louisville Street Railway Company, and the Bickel Asphalt Paving Company were all made defendants, it being alleged in the petition that the plaintiff, while riding his bicycle along the public street was injured through the failure of the Pittsburg Coal Company, its agents and servants in charge of its coal cart then being driven along the street in the same direction that the plaintiff was traveling to exercise reasonable care for his protection after his peril had been discovered, or could have been discovered by its said agents by the exercise of ordinary care; and that the city of Louisville had negligently failed to have and keep its street at the point of his injury in a reasonably safe condition, and that the street at said point had become and was defective, full of holes and pits, and was also covered with loose rock, brick, and other débris; and that the plaintiff, while riding his bicycle, ran into one of the holes in the street, which the city had negligently permitted to remain and be in the street, and was thrown from his bicycle under the wheel of the coal cart and was thereby injured; and further alleging that the Bickel Asphalt Paving Company had a contract with the city of Louisville to make repairs on the Bardstown road within the corporate limits, and that in so doing the said paving company had placed a large quantity of brick, stone, and other building material along the street adjacent to the point where he was injured, and that through the negligence and carelessness of the paving company, its agents and servants, said brick, stone, and other materials had become scattered over the street, and that in riding his bicycle along said street plaintiff struck a stone or brick thus negligently placed and allowed to remain in the street by the paving company, and was thrown from his wheel under the coal cart and injured. The petition further alleges that the Louisville Railway Company had contributed to his injury by having upon the street at said point building material which obstructed the street to such an extent that his free passage was interfered with, and he was caused to and did fall under the coal cart and received his injuries.

Each of the defendants answered, denying the allegations of the petition, and pleading contributory negligence on the part of the plaintiff. Issue was joined, and upon trial before a jury, the court, at the conclusion of the testimony for plaintiff, sustained a motion of the defendants Street Railway Company and the Pittsburg Coal Company for peremptory instructions, but overruled a simllar motion as to the other defendants. This motion was again entered by the paving company and the city of Louisville at the conclusion of all the evidence, and again overruled, and of this each complains.

The evidence for plaintiff, in substance, supports the allegations of the petition as to the city of Louisville, but is rather unsatisfactory and vague as to the paving company. The boy testified in his own behalf; he claims that he was going to a hardware store some blocks beyond where he was injured, and was riding along at a moderate rate, coming up behind the coal cart of the Pittsburg Coal Company, when a street car moving in the opposite direction approached, requiring the coal cart to leave the street car track, turning to the right, the same side on which plaintiff was riding, and thereby compelled plaintiff, who had by this time reached a point opposite the flank of the mules which were drawing the coal cart, to veer to the right also, and in so doing his wheel dropped into a hole in the street, striking a half brick which was in the hole, precipitating him over the handlebars of his wheel and under the feet of the mules, where the on-coming wheels of the cart ran over, broke and mangled his legs and other parts of his body.

It is agreed that the street at the point of his injury had been in course of reconstruction by the city, through its contractors the asphalt company, and that the street railway company had given up one of its tracks and had arranged for the cars at that point to cross over and use the other track, so as to give the contractors an opportunity to reconstruct one-half of the street while the other one-half was being used by the public. The public was using the right-hand side of the street as you travel from the city towards the country, and the coal cart was driving from the city towards the country on the right-hand track, when it met the in-coming street car. The plaintiff was likewise riding from the city towards the country on the right-hand side of the street only a few feet from the curb. The plaintiff does not claim that he knew exactly what caused...