Braunstein v. City of Louisville

• Decision Date: 15 February 1912
• Parties: BRAUNSTEIN v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

143 S.W. 372

146 Ky. 777

BRAUNSTEIN v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky.

February 15, 1912

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

Action by George Braunstein against the City of Louisville. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Camden R. McAtee, for appellant.

Huston Quin and Clayton B. Blakey, for appellee.

HOBSON C.J.

On September 15, 1910, George Braunstein was at work on a sewer as a construction foreman, on Spring street in the city of Louisville, about 200 yards from the quarries of the city workhouse. While he was so at work, the servants of the city operating the rock quarries at the workhouse, without warning to him or other persons upon the street, negligently set off a number of blasts of dynamite and other explosives for the purpose of getting out rock in the quarries, and thereby negligently threw large fragments of rock into the air with such force that they were caused to fall around plaintiff where he was working in the street; one of the fragments striking him and inflicting serious injuries. The servants of the city who were operating the quarries knew, or could have known by ordinary care, of the danger to persons on the highway from the blasts which they set off; the charges used in setting off the blasts were excessive, and the blasting, as it was done, created a nuisance dangerous to the lives of all persons in the much frequented vicinity, rendering the street dangerous and unsafe for public use. Braunstein filed a suit against the city to recover damages for his injuries, in which he alleged the foregoing facts. The circuit court sustained a demurrer to his petition, and, he failing to plead further, the action was dismissed.

The city workhouse was erected pursuant to the charter of the city. The quarries referred to are a part of the workhouse. In maintaining the workhouse, in which persons convicted of offenses are confined, the city is discharging a governmental function, and, while its officers and servants there are themselves responsible for any negligent acts by which they injure others, the city is not responsible for the acts of its agents employed in its governmental functions. There is no doubt, under the allegations of the petition, that the persons who fired off the blasts were negligent, and would be liable to the plaintiff for the damages he sustained by reason of their negligence. But the liability of the city for their wrongful acts is a different matter. In Jones v Corbin, 98 S.W. 1002, Jones was locked up in the city station house, and while there took a deepseated cold, because the city authorities failed to keep the prison comfortable. He sued the city for the injury to his health. It was held that he could not recover; that the maintenance of the prison was in pursuance of the city's governmental function, and in so doing it was but an arm of the state in upholding the public peace and safety. A number of previous cases are collected in that opinion. The same ruling was made in Morgan v. Shelbyville, 121 S.W. 617, and in Jackson v. Owingsville, 121 S.W. 672, 25 L. R. A. (N. S.) 180, where a prisoner received injuries, while in prison, at the hands of others, by reason of the negligence of the keeper. In Bell v. Cincinnati, 80 Ohio St. 1, 88 N.E. 128, 23 L. R. A. (N. S.) 910, the same rule was applied, where one of the servants of the city was injured in the quarries of the workhouse, by reason, as alleged, of the negligence of the other servants there; the court laying down the rule that the maintenance of the workhouse was the exercise of a governmental function by the city, and that, although the quarry was some distance from the workhouse, it was used for workhouse purposes, and the plaintiff's claim was not stronger than if he had been injured in the workhouse itself. In Board of Council of City of Danville v. Fox, 142 Ky. 476, 134 S.W. 883, 32 L. R. A. (N. S.) 636, the plaintiff was injured by reason of...