City of Harrodsburg v. Abram

• Decision Date: 03 May 1910
• Citation: 138 Ky. 157,127 S.W. 758
• Parties: CITY OF HARRODSBURG v. ABRAM.
• Court: Kentucky Court of Appeals

127 S.W. 758

138 Ky. 157

CITY OF HARRODSBURG v. ABRAM.

Court of Appeals of Kentucky.

May 3, 1910

Appeal from Circuit Court, Mercer County.

"To be officially reported."

Action by Oscar Abram against the City of Harrodsburg. Judgment for plaintiff, and defendant appeals. Reversed.

R. W Keenon and C. E. Rankin, for appellant.

J. F Vanarsdall, for appellee.

BARKER C.J.

While the appellee was driving his horse along one of the streets of the city of Harrodsburg, the shafts of the vehicle became detached by the breaking of a bolt, and fell upon the horse so frightening it that it ran away and collided with an old and unused fire engine standing near the curb upon one of the streets of the city, with the result that the horse was so severely injured that it was necessary to kill it, causing a total loss of its value to the owner. In an action against the city to recover the value of the horse, in damages, based upon the alleged negligence of the municipality in allowing the fire engine to stand in the highway, appellee recovered a judgment in the sum of $200, of which the municipality now complains.

The evidence showed the facts to have been substantially as above stated, and in addition, that the fire engine was about 8 feet wide and stood close to the curbing of the sidewalk occupying some 8 1/2 or 9 feet of the street, and had stood there several months; that the street, at the point where the accident occurred, was about 70 feet in width from curb to curb; and that, deducting the width occupied by the engine, there was more than 60 feet of highway left free from obstruction and reasonably suited for the use of the traveling public. It may be postulated that the fright of the horse was not caused by the negligence of the owner. The question, then, arises: Is the city liable for the accident which occurred?

Sixty feet is the average width of a public street, including the sidewalk, and very few municipal highways are more than 45 feet in width between the curbing; so that, after deducting the width of the street occupied by the fire engine, the evidence shows without contradiction there was left for the use of the traveling public in width considerably more highway than is afforded by the average street when entirely unobstructed. There was a total failure of evidence showing that the street with the engine standing by the curb was not reasonably safe for the uses of ordinary public travel.

Appellee relies upon the opinion in Fugate v. City of Somerset, 97 Ky. 46, 29 S.W. 970, 16 Ky. Law Rep. 807, to support the judgment; but the circumstances were not the same in that case as here. It appears from the opinion that it was alleged in the petition that the municipality had "placed, or suffered and permitted others to place, large piles of lumber on one of its principal streets, whereby same was made and left in an unsafe and dangerous condition for public travel"; and it also appears that the evidence adduced on behalf of plaintiff substantially proved the allegations of the petition. But it is neither alleged nor proved in the case at bar that the street where the accident occurred was in either an unsafe or dangerous condition; and, even if it had been so alleged, the evidence entirely refutes the supposition.

It is well established that it is the duty of municipalities to exercise reasonable care and diligence to keep its public highways in a reasonably safe condition for travel, and that if they fail in this they are liable for all resulting injuries caused by the negligent failure to discharge this important public duty. But it does not follow --and the case of Fugate v. City of Somerset, supra, is not authority for the proposition--that, if the street is in a reasonably safe condition for public travel, the municipality will be liable to the owner of a runaway horse which blindly and unnecessarily dashes into an obstruction left by the city authorities near the curbing. The duty of the municipal authorities is to maintain its highways in a reasonably safe condition for ordinary public travel; but they are not maintained for the use of runaway horses, and the use of the streets by runaway horses is not, and cannot be, anticipated by the officers of a city. We are of opinion, then, both upon reason and authority, that, if the street is reasonably safe for public travel in the ordinary way, there is no liability for an injury resulting to a runaway horse. The engine was in plain view, and the accident occurred in the daytime, and no one...