City of Bowling Green v. Rogers

• Decision Date: 03 March 1911
• Parties: CITY OF BOWLING GREEN v. ROGERS et al.
• Court: Kentucky Court of Appeals

134 S.W. 921

142 Ky. 558

CITY OF BOWLING GREEN v. ROGERS et al.

Court of Appeals of Kentucky.

March 3, 1911

Appeal from Circuit Court, Warren County.

Action by Mary H. Rogers and others against the City of Bowling Green. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

W. W Mansfield and Grider & Harlin, for appellant.

Sims &amp Rodes, for appellees.

HOBSON C.J.

The city of Bowling Green erected on a lot owned by it a city hall in which were the offices of the mayor and other city officials, the police courtroom, and the city prison. The part of the building set apart for the city prison was on the side next to the lot of Mary H. Rogers, used by her as a family residence. About two years after the erection of the city hall and its occupancy by the city authorities, she brought this suit against the city to recover damages on the grounds that the city prison had rendered the use of her property as a residence less valuable, and in fact destroyed the value of its use as a residence. On a trial of the case she recovered a judgment for $1,000. The city appeals.

The only question we deem it necessary to consider on the appeal is whether the court should have instructed the jury peremptorily to find for the defendant. The proof on the trial for the plaintiff showed in substance these facts: The windows of the prison which are covered with bars look to the front and to the rear. There are no windows looking toward Mrs. Rogers' property, but persons in the prison can stand at the windows and see the rear of her lot, thus destroying its privacy; and can also see the front of the lot. The persons confined in the prison are those arrested for the violations of the city ordinances and under the state laws for misdemeanor. Many of the prisoners use very vulgar and indecedent language in talking to one another, and this talk, when the windows are up, can be heard in Mrs Rogers' property. The prisoners are often noisy, especially when brought into the prison intoxicated, and thus disturb the rest of the Rogers family. Foul and disagreeable odors proceed from the windows and these enter the Rogers house. The prisoners can be seen from the Rogers premises through the windows and often they are very scantily clad.

Among other powers conferred on the city by the Legislature is this: "To establish and erect *** city prisons, workhouses, make regulations for the government thereof." Ky. St. 3290 (Russell's St. § 1307) subsec. 4.

In enacting and enforcing ordinances for the peace and good order of the city, it acts as an arm of the state government and in establishing a prison in which the prisoners arrested under these ordinances may be confined, it discharges a governmental duty, and is in this simply a part of the state government. It is the duty of the keeper of the prison to use ordinary care to keep it clean and sanitary, to maintain order, and to see that the prisoners conduct themselves in a decent and orderly manner. If the keeper negligently fails to do any of these things, and allows his prison to become a private nuisance, he must answer in damages to any person aggrieved thereby. But this court has held in a long line of opinions that the city is not liable for the negligence of its officers in the exercise of its governmental functions. Thus in Twyman v. Frankfort, 117 Ky. 518, 78 S.W. 446, 64 L. R. A. 572, 25 Ky. Law Rep. 1620, the deceased had lost his life it was alleged from having been negligently exposed to inclement weather when removed from a comfortable home to the pesthouse used for smallpox purposes, it being very crowded, poorly ventilated, and wholly unfit for the purpose for which it was used. A demurrer was sustained to the petition by the circuit court, and this on appeals was affirmed. The previous cases on the...