City of Ashland v. Boggs

• Decision Date: 18 December 1914
• Parties: CITY OF ASHLAND v. BOGGS.
• Court: Kentucky Court of Appeals

171 S.W. 461

161 Ky. 728

CITY OF ASHLAND v. BOGGS.

Court of Appeals of Kentucky.

December 18, 1914

Appeal from Circuit Court, Boyd County.

Action by Alice Boggs against the city of Ashland. Judgment for plaintiff, and defendant appeals. Affirmed.

John T Diederich and D. H. Putnam, both of Ashland, for appellant.

James A. Williams, of Catlettsburg, for appellee.

MILLER J.

The appellee, Mrs. Alice Boggs, lived on the south side of Greenup avenue, between Twenty-Second and Twenty-Third streets, in the city of Ashland. About 11 o'clock on the morning of March 22, 1913, she went to Preston's grocery store on the north side of Greenup avenue, between Eighteenth and Nineteenth streets, and bought a boy's hat, a broom a bundle of lettuce, and a quantity of groceries. Carrying the hat, the broom, the lettuce, and a portion of the groceries, which she, in her testimony, called a "load of groceries," Mrs. Boggs started home, walking on the north side of Greenup avenue. At the northwest corner of Twenty-First street and Greenup avenue a small wooden footbridge, from three to four feet wide and about five feet long, stretched across the gutter or drain that carried the surface water into a neighboring sewer. The gutter was from 12 to 18 inches wide and from three to four feet long, the boards on the bridge being laid crosswise, stretching side to side.

The weight of the evidence shows that the western board which formed a part of the top of the footbridge had been removed leaving a hole in the bridge from 12 to 18 inches wide, and of about the same depth. When Mrs. Boggs started to cross the bridge, the groceries and other articles which she was carrying in her arms were so placed that she was unable to see the hole in the bridge, and, stepping into the hole, she was thrown upon her left side, sustaining injuries to her back and internal organs. She was 43 years old.

In stating plaintiff's cause of action the petition alleges that:

She, "while in the exercise of reasonable and ordinary care for her own safety, stepped onto a small bridge covering a ditch about two feet deep, running across the sidewalk, and a plank in the said bridge had been removed, and lost or broken, and plaintiff stepped into said hole, which threw her across the left side of said bridge and into said ditch. That plaintiff was at the time carrying a large armful of groceries from a store to her residence, which was on the opposite side of Greenup avenue, and she presumed, and had a right to presume, that said sidewalk was in reasonably safe repair for use and travel by the public. That it was in the daytime, but the load that plaintiff had in her arms prevented her from seeing directly in front of her, and prevented her from seeing the hole in said sidewalk, even though she had been looking."

Her testimony fully corroborates the petition.

For answer, the city traversed the allegations of the petition, interposed a plea of contributory negligence upon the part of the plaintiff, and further affirmatively alleged that the city had no notice of the hole which had existed for only about two or three hours, and not for a sufficient length of time for defendant to learn of it by the exercise of ordinary diligence.

The plaintiff recovered a verdict and judgment for $329, and the city appeals.

While appellant complains of the instructions given, and the action of the court in refusing instructions offered by it, it relies for a reversal chiefly upon its contention that its motion for a peremptory instruction, made at the close of the plaintiff's evidence, and renewed at the close of all the evidence, should have been sustained.

The rule of law governing cases of this character was laid down in Bell v. City of Henderson, 74 S.W. 207, 24 Ky. Law Rep. 2435, as follows:

"A municipality is not an insurer against accidents to persons using its thoroughfares. It is not liable for injuries caused by defective streets in the absence of actual notice of such defect, or unless they have existed so long that notice or knowledge thereof should be imputed to them. And notice should not be imputed where the defects are of recent origin, and particularly where they are concealed in anywise. Whilst generally the jury should determine, as a question of fact, whether a city had such notice, yet where the facts are undisputed, and but one reasonable inference can be drawn from them, it becomes a question for the court to decide. Smith's Modern Law of Municipal Corporations, §§ 1545-1546; Elliott on Roads and Streets, §§ 626-627; City of Covington v. Assman [113 Ky. 608, 68 S.W. 646] 24 Ky. Law Rep. 415; Canfield v. City of Newport 24 Ky. Law Rep. 2213."

City of Midway v. Lloyd, 74 S.W. 195, 24 Ky. Law Rep. 2448; Hazelrigg v. Board of Councilmen of Frankfort, 92 S.W. 584, 29 Ky. Law Rep. 208; City of Harrodsburg v. Sallee, 142 Ky. 830, 135 S.W. 405, are to the same effect.

There is little controversy over the facts of this case. Undoubtedly, the first or second board on the western end of the footbridge had been removed, leaving a hole which caused the injury to the appellee. And, although appellant has shown by several witnesses that this board probably had been removed for only a few hours, and certainly that appellant had no notice of it before the accident, nevertheless appellee has shown by several witnesses that the board had been loose, and dropped down, with one end sticking up and one down, for at least several days, and, according to some of the witnesses, for a week or more. And, although several witnesses saw the board lying nearby immediately after the injury, unbroken, and with the appearance of having lately been removed by some one, or had become displaced in some way not explained, the condition of the bridge was a question for the jury under the contradictory evidence.

Upon the issue, therefore, of imputed notice to the city, and negligence upon its part, the proof was sufficient to sustain the verdict of the jury, and, as we view the instructions, they are substantially correct.

Ordinarily, the question of contributory negligence is for the jury, but where the evidence is all one way, and but one conclusion can reasonably be drawn therefrom, it is for the court to say whether the acts relied upon constitute contributory negligence upon the part of the plaintiff; and if they do constitute such negligence, it is the duty of the court to take the case from the jury, by directing a verdict for the defendant.

In view of the controlling effect we are called upon to give the case of Merchants' Ice & Cold Storage Co. v. Bargholt, 129 Ky. 60, 110 S.W. 364, 33 Ky. Law Rep. 488, 16 Ann.Cas. 965, where the question is thoroughly discussed, it will not be necessary to consider the other cases decided by this court, and in other jurisdictions, and referred to in the briefs of counsel.

In the note in 16 Ann.Cas. 969, supra, it is said:

"It may be stated as a general rule that where a pedestrian, while proceeding along the sidewalk of a municipality, sustains an injury by reason of a defect or obstruction which he might have observed if he had looked, the fact that his attention was diverted from the surface of the street at the moment when he encountered the defect does not establish negligence on his part as a matter of law. Whether he was negligent is in such case a question for the jury."

And, in support of the rule, the annotator cites, among other cases Valparaiso v. Schwerdt, 40 Ind.App. 608, 82 N.E. 923, where the plaintiff's attention was diverted by a person addressing her; Mathews v. Cedar Rapids, 80 Iowa 459, 45 N.W. 894, 20 Am.St.Rep. 436, where the plaintiff fell into an opening in front of a shop while looking at goods displayed in the window; Kaiser v. Hahn, 126 Iowa 561, 102 N.W. 504, and Fuller v. Hyde Park, 162 Mass. 51, 37 N.E. 782, where the plaintiff, with face averted, was talking with a companion; Sampson v. Boston, 184 Mass. 46, 67 N.E. 866, where the plaintiff was looking at a street car to see whether seats were vacant; Keith v. Worcester, etc., St. R. Co., 196 Mass. 478, 82 N.E. 680, 14 L.R.A. (N. S.) 648, where the plaintiff's attention was diverted by hurrying to board a street car; Woods v. Boston, 121 Mass. 337, and Le Beau v. Telephone, etc., Constr. Co., 109 Mich. 302, 67 N.W. 339, where the plaintiff, while watching workmen tearing up a pavement, walked into a manhole guarded by a barrel placed beside it; Graves v. Battle Creek, 95 Mich. 266, 54 N.W. 757, 19 L.R.A. 641, 35 Am.St.Rep. 561, and Barr v. Kansas City, 105 Mo. 550, 16 S.W. 483, where the plaintiff fell into a manhole while his attention was attracted to an acquaintance; Lattimore v. Union Electric Light, etc., Co., 128 Mo.App. 37, 106 S.W. 543, where the plaintiff tripped over a hose, colored like the sidewalk, while watching the building operations; Houston v. Traphagen, 47 N. J. Law, 23, where the plaintiff fell into an opening in the sidewalk while attracted by the contents of the shop window; Webb v. Heintz, 52 Or. 444, 97 P. 753, where the plaintiff's attention was diverted to an approaching street car; Barstow v. Berlin, 34 Wis. 357; West v. Eau Claire, 89 Wis. 31, 61 N.W. 313; Kenyon v. Mondovi, 98 Wis. 50, 73 N.W. 314, where the plaintiff slipped on ice, his attention having been diverted by being accosted by...