Blue Grass Traction Co. v. Grover

• Decision Date: 07 December 1909
• Citation: 123 S.W. 264,135 Ky. 685
• Parties: BLUE GRASS TRACTION CO. v. GROVER.
• Court: Kentucky Court of Appeals

123 S.W. 264

135 Ky. 685

BLUE GRASS TRACTION CO. v. GROVER.

Court of Appeals of Kentucky.

December 7, 1909

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action by J. D. Grover against the Blue Grass Traction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Allen Duncan, Stoll Bush, and Bradley Bradley, for appellant.

B. M Lee and James Bradley, for appellee.

HOBSON J.

Previous to the building of the Blue Grass Traction line between Georgetown and Lexington, the turnpike between those places crossed the railroad track of the Cincinnati Southern Railroad at grade. When the traction company was about to build its line, it was agreed between it, the railroad company, and the Fayette fiscal court to deflect the turnpike a little to one side and cross the railroad where it ran through a cut; the traction company agreeing to put up and maintain a bridge at this point free of cost to Fayette county, and Fayette county agreeing to maintain the turnpike from the points where it left the old line on each side to the bridge. The arrangement was carried out, the bridge was built; but the successor of the traction company failed to keep it in order, and by reason of its being out of order a valuable race mare belonging to J. D. Grover, while crossing over the bridge, had her foot to slip through the floor, and was injured about the knee in such a manner as, it is claimed, unfitted her for racing purposes. He brought this suit against the present traction company for the injury to his mare, and recovered a judgment for $5,000. The traction company appeals.

There was little controversy in the evidence as to the value of the mare; and, while the proof was conflicting as to the extent of her injuries, we cannot, under the proof, disturb the verdict on account of the amount of the damages found. The only material question in the case which it is necessary for us to consider is whether the traction company is liable to Grover for the injury to his mare. The turnpike was a county highway. It is well settled that the county is not responsible to a traveler on the highway who is injured by a defect in it. Moberley v. Carter County, 5 Ky. Law Rep. 694; Sheppard v. Pulaski Co., 18 S.W. 15 13 Ky. Law Rep. 672. The bridge was a part of the county highway, and, unless the traction company became liable by reason of its contract with the fiscal court, or by some other fact shown in the case, then it is not liable to Grover for an injury to his mare while traveling on the public highway by reason of a defect in it. The contract referred to so far as material is as follows: "This contract made and entered into this the 31st day of March, 1902, by and between the Fayette fiscal court of Fayette county, Kentucky as party of the first part and the Cincinnati, New Orleans &amp Texas Pacific Railway Company and the Georgetown & Lexington Traction Company, as parties of the second part, witnesseth: That for and in consideration of the mutual covenants, promises and agreements herein contained, it is hereby agreed: (1) That the party of the first part will consent and permit and does hereby consent and permit that the parties of the second part may remove the roadbed of the Georgetown and Lexington turnpike from where same is now located and place the said roadbed and the pike thereon upon the fills to be constructed by the parties of the second part, according to the plans and profiles which have heretofore been prepared and which have been and are now approved by the parties hereto; a copy of said plans and specifications is hereto attached and made a part hereof. *** (2) That the parties of the second part hereby agree to construct the pike upon the fills and remove the pike as it is now located as well as to construct the proposed overhead bridge at their own proper cost and expense, and the Georgetown & Lexington Traction Company, its successors and assigns, agree to maintain said bridge at their own cost and expense, but this is not to be construed as an agreement on the part of the parties of the second part to maintain or keep in repair or renew the metal on said pike so placed by them on said fill. It is agreed that all of said work shall be done under the supervision of the superintendent of Fayette county and according to the plans and profiles and specifications which have heretofore been prepared and approved by the parties hereto. *** The old turnpike shall remain open to the public until the new road is completed and accepted by the fiscal court. The bridge is to be built and forever maintained by the Georgetown & Lexington Traction Company, and its successors and assigns, free of cost to Fayette county. The bridge shall not be less than (24) twenty-four feet wide in the clear and so constructed that the whole of the floor shall be...