City of Catlettsburg v. Sutherland's Adm'r

• Decision Date: 17 February 1933
• Citation: 57 S.W.2d 512,247 Ky. 540
• Parties: CITY OF CATLETTSBURG v. SUTHERLAND'S ADM'R.
• Court: Kentucky Court of Appeals

57 S.W.2d 512

247 Ky. 540

CITY OF CATLETTSBURG v. SUTHERLAND'S ADM'R.

Court of Appeals of Kentucky

February 17, 1933

Appeal from Circuit Court, Boyd County.

Action by J. J. Sutherland's administrator against the City of Catlettsburg. From a judgment for plaintiff, defendant appeals.

Reversed with directions.

George F. Gallup and H. F. Price, both of Catlettsburg, for appellant.

Dysard Tinsley & Prichard, of Ashland, for appellee.

THOMAS Justice.

The general direction of Louisa street in the city of Catlettsburg, Ky. is north and south. It skirts a hill and its paved surface was constructed by digging down the hill on the west side, leaving an embankment on the east side, and in ascending the hill it makes some curves.

On the late evening of June 30, 1931, J. J. Sutherland was driving an automobile south on that street and ascending the hill. He had in his car two fellow travelers. At a point on the street, and just beyond which there was a curve, William Puckett resided with his family on its east side a short distance from the foot of the embankment. Some years ago the city improved Louisa street with concrete and made the traveling surface sixteen feet wide with a decline from the center toward each side. While the concrete was new and green, twenty-penny nails were driven into its extreme edges and over them there was constructed concrete curbings four inches thick and about six inches high, thus forming a guttering on each side of the road to take care of the water falling upon it, and to prevent it from softening the shoulders of the roadbed, and causing portions of it on its lower side from wasting away.

About opposite Puckett's house Sutherland overtook George F Gallup, who was driving his car in the same direction, and he attempted to pass him to the left, which required a swerving of his car toward the embankment side of the street. In his attempt to pass he struck some portion of the rear part of Gallup's car and ran his car against the described curbing constructed on that side which gave way and caused his car to run over the embankment. In some manner he was pinned in it and a fire started which burned him so that he died shortly thereafter. The appellee and plaintiff below, J W. McKinzie, qualified as his administrator and filed this action in the Boyd circuit court against the defendant and appellant, city of Catlettsburg, to recover for the death of his decedent, which he alleged in his petition was due to its negligence in not maintaining Louisa street at that point "in a safe condition and good repair for the use of the general public *** in that the concrete and curbing from which said street was constructed, was permitted to become deteriorated and broken, and the said six-inch concrete curb on the north (east) side of said street was permitted to fall off for a distance of approximately 20 feet," and that holes had appeared in the surface of the street at that point and the city had negligently failed to repair them.

The answer denied the material averments of the petition, and in another paragraph pleaded contributory negligence which was denied by reply. The trial resulted in a verdict in favor of plaintiff for the sum of $5,000, which the court declined to set aside on defendant's motion for a new trial, and from the judgment pronounced thereon this appeal is prosecuted. A number of grounds are set out in the motion, but some of them are immaterial, and others will not likely occur upon another trial, for which reasons we have concluded to discuss and determine such of them only as we conclude merit it.

It is first contended that the court erred in not sustaining defendant's motion for a peremptory instruction in its favor, and which we conclude presents the most serious question in the case. In disposing of it, it becomes necessary to consider in connection therewith another ground involving complaint of instruction No. 1 given by the court to the jury over defendant's objection. It will be remembered that the petition averred, as negligence on the part of the city, the failure to construct and maintain the curbing of the street on its east side over which decedent's automobile was precipitated, and the complained of instruction told the jury that if it believed from the evidence that at the time and place referred to in the evidence, " the concrete curb on said street had been permitted to deteriorate and become broken and fallen off the roadway, and that holes had been permitted to come in said street, and that the falling off of said curb, and the presence of said holes or either, rendered said street in a condition not reasonably safe for the use of the public, and that the presence of said broken and fallen off curbing and said holes in said street, and the danger therefrom, were known to the defendant, City of Catlettsburg, or its agents or any of them, charged with the duty of repairing or inspecting its streets, including its police officers, or could have been known to them or to any of them by the exercise of ordinary care long enough prior to the injury and death of the said J. J. Sutherland to have enabled the defendant's said agents to have repaired and restored said broken curbing and said holes, and shall further believe from the evidence that the said J. J. Sutherland, while driving an automobile along Louisa Street, and while exercising ordinary care for his own safety, drove into and struck said holes in said street, and by reason thereof, or by reason of the breaking off and falling away of the concrete curbing from said street, said automobile was caused to and did leave the roadway and fall over the embankment on the north side of said street, whereby said Sutherland was killed, the law is for the plaintiff, and the jury should so find." (Our italics.)

It will be perceived that the instruction authorized a recovery for (a) the defective condition of the curbing on the east side of Louisa street at the point where the accident occurred, if by reason thereof decedent's car was precipitated over that side. Necessarily, for that proposition to be true it became and was the duty of the city to maintain the curbing or other barrier for the purpose of preventing such accident to vehicles traveling on the street. If it was not its duty to do so, then it would logically follow that it would not be negligence to maintain the curbing it did have in a sound condition after it had been constructed, and which was not to serve as a barrier, but only to form the side of a guttering by which the water falling on the surface of the street could be carried away, without running off on its sides. The instruction likewise informed the jury (b) that notice of both the condition of the street and the curbing at the point would be brought home to the city if its "police officers" had knowledge thereof (without the further qualification necessary to make their notice that of the city), thereby assuming that it was a part of the duty of such officers to inspect and report the condition of the public ways of the city. We will refer to such subdivisions of the instruction as "defects" therein.

Defect (a) was before us in the recent case of Watkins' Adm'r v. City of Catlettsburg, 243 Ky. 197, 47 S.W.2d 1032, 1034, wherein the question of the duty of the city to erect barriers to prevent accidents of the nature here involved was presented. In the discussion of the question, as contained in the opinion therein, it is pointed out that in some jurisdictions, particularly Massachusetts, it is held that it is the duty of the city (at least under some circumstances) to so construct and maintain such barriers; but in denying that as a general doctrine in this jurisdiction, we therein determined: "That there was no duty on the part of the city of Catlettsburg, under the conditions presented in this case, to have maintained a guard or barrier. To have prevented the car going over the embankment into the river in this case would have required a wall of sufficient strength to withstand the force of the moving automobile and to have wrecked it. There was no duty to maintain such an obstruction. The city not being shown to have been negligent, it was entitled to a directed verdict."

No other act of negligence was relied on in that case, and it having been found to impose no obligation on the part of the municipality, the peremptory instruction was directed. In that opinion domestic cases in which analogous questions involving the same principle, are referred to and which tend toward exonerating a municipality from maintaining such barriers. Those cases are: Town of Elsmere v. Tanner, 158 Ky. 681, 166 S.W. 220; City of Harrodsburg v. Abram, 138 Ky. 157, 127 S.W. 758, 29 L.R.A. (N. S.) 199; and Overton's Adm'x v. City of Louisville, 221 Ky. 289, 298 S.W. 968. Reference is also made therein to annotations in 27 A.L.R. 937, and 36 A.L.R. 413, wherein the conclusion involving the correct rule is...