Cecil v. Oertel Company

• Decision Date: 19 June 1931
• Citation: Cecil v. Oertel Company, 239 Ky. 825, 40 S.W. 2d 328 (Ky. 1931)
• Parties: Cecil v. Oertel Company.
• Court: Supreme Court of Kentucky

239 Ky. 825

Cecil v.Oertel Company.

Court of Appeals of Kentucky.

Decided June 19, 1931.

1. Negligence. — To make out case of negligence, plaintiff must produce some evidence tending to establish negligence or facts from which it may be naturally inferred.

2. Trial. — Case should go to jury, when there is any evidence, however slight, tending to establish issue.

3. Trial. — "Evidence," sufficient for jury, means something of substance and consequence, not vague or uncertain matter lacking in quality of proof or fitness to induce conviction.

4.Municipal Corporations.— Abutting owners have right, independently of statute, to have openings in sidewalks with proper coverings.

5. Evidence.— That trap doors in sidewalks are temporarily opened to place wares in, or remove them from, basements is matter of common knowledge.

6.Municipal Corporations.— It is not negligence per se to open trap doors in sidewalks.

7.Municipal Corporations.— Servant opening trap door in sidewalk owed duty to use care usually exercised by reasonably prudent persons, similarly engaged, to prevent pedestrian from stepping into opening.

8.Municipal Corporations.— Evidence held insufficient to take to jury question of defendant's negligence in not using proper precaution to prevent pedestrian from stepping through open door in sidewalk.

9.Municipal Corporations.— Evidence held to show such want of ordinary care by pedestrian that he would not otherwise have been injured by falling through open door in sidewalk.

10.Municipal Corporations.— Pedestrian may assume and act on assumption that sidewalk is reasonably safe for travel.

11.Municipal Corporations.— Pedestrian must use same degree of care in using sidewalk as ordinarily prudent persons usually exercise under similar circumstances.

12.Municipal Corporations.— Pedestrian cannot proceed along sidewalk oblivious to fact that other persons are using it, or that trap doors permitted therein may temporarily be open.

13. Negligence.— Contributory negligence is ordinarily for jury, but court should pass on question, where facts leave no room for difference of opinion among fair-minded, intelligent men.

Appeal from Jefferson Circuit Court(Common Pleas Branch, First Division).

HUBBARD & HUBBARD for appellant.

O'NEAL & O'NEAL and CLEM W. HUGGINS for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Affirming.

James G. Cecil, appellant and plaintiff below, instituted this suit in the Jefferson circuit court against the Oertel Company, a corporation, and Edward P. Quino.The Oertel Company is engaged in the manufacture and sale of soft drinks and delivers its manufactured products by motortrucks to customers in Louisville.E.P. Quino is engaged in the restaurant and soft drink business at 601 West Market street.

There is a basement in connection with Quino's building which may be reached by an opening from the pavement.This opening has trap doors of metal grating which, when closed, are flush with the street.Two skids reaching from the floor of the basement to the outer end of the opening immediately beneath the trap doors, form an incline on which boxes and barrels may slide from the pavement.

It is alleged in the petition that on or about the 17th day of June, 1929, appellant was walking east on the sidewalk in front of Quino's place of business, when an employee of the Oertel Company, without giving him any warning, suddenly opened one door just as appellant stepped on the other half of the trap door; that appellant was thrown and caused to fall into the opening leading to the basement; that appellant, by reason of his fall, broke his right shoulder, and sustained other serious and permanent injuries.

The defendants filed separate demurrers to the petition, and, the demurrers being overruled, they filed separate answers.The answers in addition to a general denial contained a plea of contributory negligence and the affirmative parts of the answers were traversed by reply.At the close of plaintiff's evidence, the court sustained defendants' motion for a peremptory instruction in their favor, and, from a judgment based on the directed verdict of the jury, the plaintiff has prosecuted this appeal as against the Oertel Company alone.

The evidence of appellant as to how the accident occurred is, substantially, that he was walking east on the right-hand side of the pavement, looking directly ahead, and it seemed to him, and he still has the impression, that some one ran into him or hit him; that he fell through an open door leading into Quino's basement; that his legs went between the skids used for unloading goods but that he caught with his arms and sustained a broken shoulder and other bruises and injuries.He did not know who ran into him and he did not see anyone moving around, nor did he know how nor where he was hit.He stated that there was nothing to prevent him seeing Herman (the driver of the truck) if the latter was in the act of opening the cellar doors as he approached.

He was asked if he made the following statement in giving his deposition on April 8, 1930."I was walking up the street.I walked on to one door and the other door was open and I just stepped right in it."He replied that he felt sure that he made the statement.On being asked whether Mr. Herman ran into him or whether he ran into Herman, he stated, "Some man ran into me; I know I fell in the cellar door."He further stated that he did not know how far from the cellar door he was walking, but that he was sure he was on the right side of the pavement.

A photograph of the permises where the accident occurred is filed in the evidence.This shows that the surface of the concrete pavement is divided into 3 spaces by grooves or expansion joints running parallel with the curb and property line.There is no evidence as to the width of the sidewalk, but we judge from the expansion joints and general surroundings that it is between 15 and 18 feet in width.The doors of Quino's basement do not reach to the first expansion joint, and it appears that they do not reach one-third of the way across the pavement.

Charles Herman, the driver of appellee's truck, was introduced as a witness for appellant and stated that he had unloaded a keg of beer for Quino, and had...