Board of Councilmen of City of Frankfort v. Buttimer

• Decision Date: 16 February 1912
• Citation: Board of Councilmen of City of Frankfort v. Buttimer, 146 Ky. 815, 143 S.W. 410 (Ky. Ct. App. 1912)
• Parties: BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. BUTTIMER (two cases).
• Writing for the Court: MILLER, J.
• Court: Kentucky Court of Appeals

143 S.W. 410

146 Ky. 815

BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. BUTTIMER (two cases).

Court of Appeals of Kentucky.

February 16, 1912

Appeal from Circuit Court, Franklin County.

Actions by Jennie Buttimer and Mary Buttimer against the Board of Councilmen of the City of Frankfort. From judgments for plaintiffs, defendant appeals. Affirmed.

F. M Dailey, for appellant.

B. G Williams and Leslie W. Morris, for appellees.

MILLER J.

Mrs James Buttimer, the mother and guardian of the appellees, Jennie and Mary Julia Buttimer, owns the house in which they reside at the corner of Todd and Logan streets in Frankfort. In April, 1909, the appellant undertook to drain a stagnant pond located upon the Dunnigan lot, which lies immediately across the street from Mrs. Buttimer's lot, by carrying the water from the pond into the catch-basin at the street corner, and in so doing it left dirt and other material piled in the street, which was washed into and obstructed the catch-basin to such an extent that the water flooded the cellar of Mrs. Buttimer's house. The cellar was 6 feet deep, and was entirely filled with water, which remained there for quite a while. She notified the mayor, and he sent a city employé to Mrs. Buttimer's property for the purpose of seeing what was to be done; but nothing substantial was done. In August Mrs. Buttimer's two children, Jennie, aged 16, and Mary Julia, aged 13, became sick. Jennie was afflicted with neurasthenia, accompanied by a loss of flesh, and anæmic conditions, while Julia suffered from August until October or later with malarial fever, which left her with a shortened limb. The mud and water and decayed material remained in the cellar from April until August. The house was made unfit for occupation, and disagreeable and musty odors from the cellar permeated through the entire building. The two children, Jennie and Mary Julia, brought these two actions by their guardian against the city for damages. The cases were heard upon the same evidence, and plaintiffs recovered verdicts for $800 and $300, respectively. The city appeals in each case.

1. Appellant demurred to the petition for the reason that it failed to allege that the city had notice of the negligence which consisted in leaving the dirt, or digging the trench in such a way as to cause the obstruction of the sewer and the overflow of the cellar. The petition, however, alleges that the city did those acts; that it dug the trench and left the dirt; and, that being true, it necessarily had knowledge of those facts. This is not a case where some person other than the city obstructs the street in such a way as to cause injury and damage to third persons. It is well settled that a city is not liable for injuries caused by an obstruction in its street, unless it knew, or by the exercise of ordinary case could have known, of the existence of the obstruction. Hazelrigg v. Board of Council, 29 Ky. Law Rep. 207 92 S.W. 584; City of Harrodsburg v. Sallee, 142 Ky. 830, 135 S.W. 405. But this principle is not applicable to the case at bar, for the reason that the obstruction was caused by the city itself, and it...