City of Covington v. Westbay

• Decision Date: 15 January 1914
• Parties: CITY OF COVINGTON v. WESTBAY.
• Court: Kentucky Court of Appeals

162 S.W. 91

156 Ky. 839

CITY OF COVINGTON v. WESTBAY.

Court of Appeals of Kentucky.

January 15, 1914

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Addie Westbay against the City of Covington. From a judgment for plaintiff, defendant appeals. Affirmed.

Stephens L. Blakely, of Covington, for appellant.

O. M Rogers, of Covington, for appellee.

CLAY C.

On September 26, 1909, plaintiff, Addie Westbay, boarded one of the cars of the South Covington & Cincinnati Street Railway Company at the intersection of Pike street and Madison avenue, in the city of Covington, for the purpose of being carried to Fifteenth street and Madison avenue. At the place where the cars usually stop at Fifteenth street and Madison avenue, there is a hole in the street. On the occasion of the accident the car on which plaintiff was riding stopped with its steps above the hole. In alighting from the car she stepped into the hole and broke her leg. She brought suit for damages both against the street car company and the city of Covington. In this action against the city of Covington she recovered a verdict and judgment in the sum of $500. The city appeals.

The action is predicated on the failure of the city to maintain its street in a reasonably safe condition for public travel. The evidence for plaintiff shows that the hole in question was as much as seven inches deep, and that the surface was rough and uneven. Defendant's evidence is to the effect that the hole was only 1 1/2 or 2 inches deep, and that the surface was smooth.

The first error relied on is the failure of the court to give a peremptory instruction in favor of the defendant. In this connection it is insisted that as the accident happened between 6 and 7 o'clock, and there was some evidence to the effect that street lights were burning, plaintiff was guilty of contributory negligence in stepping into the hole. Street cars stop for only a short time. Passengers are expected to leave it with reasonable dispatch. They are not required to anticipate that the company will negligently stop its cars at a place where it is not reasonably safe for passengers to alight. On the contrary, they have the right to assume that the street is reasonably safe. Under these circumstances, one who steps from the car into a hole in the street cannot be said, as a matter of law, to be guilty of contributory negligence. The question is for the jury.

The evidence of one of the witnesses to the effect that she about five months previous to the time plaintiff was injured stepped into the same hole was competent on the ground that it showed that the defect in the street had existed for a long time, and that the city knew, or by the exercise of ordinary care could have known, of its existence.

While the evidence of the existence of other holes in the neighborhood of the accident was perhaps not competent, yet it was not prejudicial, in view of the fact that all the other evidence is confined to the hole into which plaintiff fell, and the real issue was whether or not at that particular point the street was in a reasonably safe condition for public travel.

The court did not err in refusing to permit the city to prove that its street was not repaired because the Barber Asphalt Paving Company had declined to execute a contract with the city on the ground that no money had been provided for that purpose. The refusal of a certain contractor to enter into a contract with the city to repair its streets did not relieve it of its obligation under the law to keep and maintain its streets in a reasonably safe condition for public travel.

It appears that during the progress of this action the plaintiff compromised her case against the street car company. By amended answer the city pleaded the release of the street car company as a bar to this action. The contract of release is as follows: "In consideration of the payment of the sum of seven hundred and fifty dollars ($750) to the plaintiff Addie Westbay, by the defendant, the South Covington & Cincinnati Street Railway Company, the receipt whereof is hereby acknowledged by the plaintiff, she does hereby release and discharge the said defendant company from all further liability to her on account of her claim against said defendant company for the injury that she sustained on the evening of September 26, 1909, in alighting from one of its cars to the street, at the intersection of Fifteenth street and Madison avenue, in the city of Covington, on said date, and the above-styled cause, in which the plaintiff is seeking to recover of said defendant damages for said injury, may be dismissed as to said defendant, the South...