Board of Council of City of Danville v. Fox

• Decision Date: 28 February 1911
• Citation: 134 S.W. 883,142 Ky. 476
• Parties: BOARD OF COUNCIL OF CITY OF DANVILLE v. FOX.
• Court: Kentucky Court of Appeals

134 S.W. 883

142 Ky. 476

BOARD OF COUNCIL OF CITY OF DANVILLE v. FOX.

Court of Appeals of Kentucky.

February 28, 1911

Appeal from Circuit Court, Boyle County.

Action by Robert Fox against the Board of Council of the City of Danville. From a judgment in favor of the plaintiff defendant appeals. Reversed.

Fox &amp Jackson, for appellant.

Robt. Harding and J. W. Rawlings, for appellee.

CARROLL J.

This appeal is prosecuted from a judgment of the Boyle circuit court in favor of the appellee against the appellant.

In his petition to recover damages for personal injuries sustained the appellee averred that: "He was driving along Lexington street, a public thoroughfare in the city of Danville, in a buggy drawn by a horse, when the defendant the board of council of the city of Danville, by its gross carelessness and negligence in having at said time and place in operation, under the conditions then and there existing and without safeguards or warning, a large roller and steam engine, and by its gross carelessness and negligence in the handling, management, and operation of said engine and roller at said time and place, and by its gross carelessness and negligence in causing and permitting said engine to suddenly emit large quantities of steam, and throw and cause same to be emitted and thrown towards the horse plaintiff was driving, as this plaintiff was in the act of passing along said street, and by said engine and roller, caused the horse driven by him to be and become frightened and unmanageable, and to rear and plunge and kick, and to kick the plaintiff, and to break, fracture, and sprain his ankle and foot."

The evidence on behalf of the plaintiff conduced to show that, just as the horse appellee was driving came opposite the steam roller that was being used by agents or employés of the city in the repair of its streets, the employés in charge of it suddenly, and without giving notice or warning of their intention so to do, negligently or carelessly caused or permitted the engine to let off steam with a hissing noise, which struck the ground under and about the horse's feet; or, as said by counsel for appellee, "his injuries were due to and caused by the negligent act of the appellant's employés in throwing this steam under and about this horse, which was going gently by the roller, and would not have been frightened, except for this negligent act."

Conceding that the evidence introduced on...