City of Bowling Green v. Bowling Green Gaslight Co.

• Decision Date: 16 October 1908
• Parties: CITY OF BOWLING GREEN v. BOWLING GREEN GASLIGHT CO.
• Court: Kentucky Court of Appeals

112 S.W. 917

CITY OF BOWLING GREEN v. BOWLING GREEN GASLIGHT CO.

Court of Appeals of Kentucky.

October 16, 1908

Appeal from Circuit Court, Warren County. "Not to be officially reported."

Action by the city of Bowling Green against the Bowling Green Gaslight Company. A demurrer to the petition was sustained and plaintiff appeals. Affirmed.

R. C P. Thomas and S.D. Hines, for appellant.

Sims Du Bose & Rodes, for appellee.

CARROLL J. J.

Reed Madison brought suit against the city of Bowling Green to recover damages for personal injuries sustained in falling into a hole in a plank sidewalk. He averred that, when the walk was torn up for the purpose of repairing the same, the city permitted large quantities of steam from an adjacent steam power building to be transported through pipes and emitted from the pipes under the sidewalk at a place where it was torn up, all of which was done with the knowledge of the city; that while the walk was torn up, and the steam boiling up from the walk, he, while passing along on the sidewalk in a careful manner, being blinded by the steam, and not knowing of the opening in the walk, fell into it; that the city although it knew the custom of the power house company to permit the steam from its building to escape into the sewer under the sidewalk at the place where the opening was made, failed to guard or protect in any way the opening. To this petition the city filed an answer, controverting all the averments of the petition; but before a trial of the case it gave notice to the Bowling Green Gaslight Company of the pendency of the action and its insistence that the gas company was liable to the city for any amount that Madison might recover. Thereupon it was agreed between the city and the gaslight company that, if the city compromised and settled the case for a sum not exceeding $500, the settlement should be treated as the verdict of a properly instructed jury for that amount; the compromise to have the same effect as if a judgment for the sum agreed upon had been entered. Thereafter the city compromised the claim on the terms specified in the agreement, and brought this action against the gaslight company to recover the amount so paid, making the pleadings in the Madison case exhibits with the petition.

The petition of the city, to which a demurrer was sustained after setting out the foregoing facts, further averred that the gaslight company, at the time Madison sustained the injuries complained of, was engaged in operating a gas and electric light plant, situated adjacent to the sidewalk upon which the repairs were being made, and that in front of the gas company's building and under the sidewalk was one of the sewers of the city, which was covered with wooden planks that furnished a walk for pedestrians, and that, while the city was engaged in repairing the cover over the sewer near or adjacent to the power house, the defendant carelessly and negligently, and without the authority or consent of the city, emitted or permitted to escape large quantities of steam and vapor from pipes extending from said power plant into the sewer, and negligently and carelessly emitted large quantities of steam into the opening where said...