City of Covington v. Johnson

• Decision Date: 18 September 1902
• Citation: 69 S.W. 703
• Parties: CITY OF COVINGTON v. JOHNSON. [1]
• Court: Kentucky Court of Appeals

69 S.W. 703

CITY OF COVINGTON v. JOHNSON. ^[1]

Court of Appeals of Kentucky.

September 18, 1902

Appeal from circuit court, Kenton county.

"Not to be officially reported."

Action by Thomas Johnson against the city of Covington to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

F. J Hanlon, for appellant.

B. F Graziani, for appellee.

O'REAR J.

Appellee was injured on March 8, 1900, by falling over an obstruction on the sidewalk on Fourth street in appellant city. The pavement had become out of repair, and had remained so for some time. It became so much worse on the 5th of March, because of the removal of a number of bricks from the pavement, and possibly the digging of a ditch or hole there,--for what purpose or by whom is not shown,--that a plank covering, nailed together in the shape and about the size of an ordinary door, was placed over the hole. This condition was permitted till after the 8th, the date of the injury. Appellee, a pedestrian, passing along this sidewalk at night, and not knowing of this unusual derangement, struck his foot against the plank, which projected above the level of the pavement, and fell, seriously injuring his ankle and shoulder. The night was dark, and the preponderance of proof is that there was no light near this point. Appellee sued for $6,000 damages because of pain suffered, loss of time, and of permanent impairment of his ability to earn money because of the injury. The jury returned a verdict for $558 for appellant. Both sides sought a new trial. The city alone has appealed.

The main contention made by appellant is that it did not create the condition through which appellee was injured, that it was the lot owner, and that he is liable primarily, and should be made to bear the damage. The lot owner was not before the court, so as to warrant a trial against him in a proceeding for personal judgment. It may be true that the lot owner is responsible for having dug the hole, and imperfectly or negligently covering it, so as to cause the injury sued for but it is the duty of the city to see that its streets are kept in reasonable safe condition for travel upon them. If it fails to use ordinary care and diligence in the discharge of this duty to the public, it is liable for injuries occasioned thereby. That another is jointly liable is no excuse for the city's neglect of its duty. City of Covington v....