Bryant v. City of Louisville

• Decision Date: 27 January 1948
• Citation: 208 S.W.2d 306,306 Ky. 414
• Parties: BRYANT v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

208 S.W.2d 306

306 Ky. 414

BRYANT v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky

January 27, 1948

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; William H. Field, Judge.

Action by Emma Jane Bryant against City of Louisville for an injury sustained when plaintiff fell on one of the city's pavements. From an adverse judgment, plaintiff appeals.

Judgment reversed for new trial.

Robert Hubbard, of Louisville, for appellant.

S. M Russell, of Louisville, for appellee.

MORRIS Commissioner.

Appellant a married woman about 60 years of age, sought to recover for an injury received when she fell on one of the city's pavements. The petition alleges that the pavement at the point where she fell was in a dangerous condition, and had been permitted to remain so for a long time prior to her injury. Appellee by answer denied all material allegations of the petition and countered with a charge of contributory negligence; a reply in denial joined issue.

At the close of plaintiff's evidence the court sustained defendant's motion for a peremptory instruction; the jury acted accordingly and judgment was entered for defendant. This appeal presents the question as to whether or not as a matter of law, gauged by appellant's evidence, appellee was entitled to a directed verdict.

Mrs. Bryant lived at 616 East Market Street. She and her husband were attendants at a church on the north side of Jefferson Street, east of Shelby. In going to and from church, which they regularly attended on Sundays, they went from Market to Jefferson on Shelby, generally when the traffic lights were right, through Clay Street. There is an alley between Jefferson and Market on Shelby, and on the east sidewalk, about 5 feet from the alley there was a depression, a worn place in the concrete, about 5 feet in length, 14 inches in width near the alley, and tapered from a feather edge to 2 1/2 inches at the deepest point, which appears from photographs filed to have run crosswise on the sidewalk.

On September 1, 1946, Mrs. Bryant, her husband, daughter and son-in-law, had attended church. They chose to walk on the east sidewalk of Shelby Street. Apparently, as she was nearer to the alley, she tripped and fell, her body going forward into the alley. She suffered a broken arm, near the wrist, and other injuries which interfered with her regular work, (rooming-house keeper) for some time and caused her considerable pain and suffering.

Mrs. Bryant testified that as they were returning from church she and the daughter, walking just behind the husband and son-in-law, were discussing the morning's sermon; 'We were just walking along talking; of course I did not see the hole.' She says she stumbled and fell into the alley; the daughter failing in her effort to grab and steady her, as she began to fall.

The proof shows that Mrs. Bryant and other members of her family had walked on the east side of Clay Street many times and had observed the depression which they say had been there for a period of from six months to one year. It is because of this undisputed fact that counsel takes the position that having knowledge of the obvious depression 'and its dangerous condition,' and being a mature and intelligent person, the proximate cause of her injury was not 'the city's negligence, but plaintiff's contributory negligence, as a matter of law.'

In his oral instruction to the jury, which is made part of the record, the Judge said: 'It must be shown that the condition was not so obvious as that she must have seen and known of it in using the highway. Here the plaintiff testifies that she knew of this depression, and had seen it. Now that alone is not sufficient, ordinarily, to charge the party injured with negligence. A person who uses the sidewalks has the right to assume that the city has maintained them in a reasonably safe condition. The mere fact that a person knows of the defect does not necessarily put him out of court, because people do not go along the street keeping their eyes on the sidewalk in front of them. They are not required to; careful people are not required to do that, so the mere fact that plaintiff knew of this situation is alone indicative, but not conclusive.' The opinion then describes the depression and resumed: 'The fact that plaintiff knew that the condition existed and had seen it, is immaterial; this defect, it seems to me, was so open and obvious that a person could not avoid seeing it. Applying this principle of well settled law to the case, the plaintiff ought to have seen the condition; ought to have discovered it in using the sidewalk although she was not required to keep her eyes on the sidewalk. Therefore, I think the plaintiff has failed in making a case which the city has to answer; the plaintiff in using the sidewalk did not exercise for her own safety that which the law requires, ordinary care.'

As a general proposition the court epitomized the law in respect of the city's duty, and as to what actions or failure to act on the part of the complainant, constitutes contributory negligence. However, as indicated by the court, ...