City of Lebanon v. Graves

• Decision Date: 22 January 1918
• Citation: 178 Ky. 749,199 S.W. 1064
• Parties: CITY OF LEBANON v. GRAVES.
• Court: Kentucky Court of Appeals

199 S.W. 1064

178 Ky. 749

CITY OF LEBANON v. GRAVES.

Court of Appeals of Kentucky.

January 22, 1918

Appeal from Circuit Court, Marion County.

Action by Lizzie D. Graves against the City of Lebanon. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas C. Boldrick and W. H. Spragens, both of Lebanon, for appellant.

P. K McElroy and H. S. McElroy, both of Lebanon, for appellee.

CARROLL J.

The appellee, Mrs. Graves, sustained injuries by falling on a concrete pavement in the city of Lebanon, and in this suit to recover damages there was a verdict and judgment in her favor, and the city appeals.

On the main street and in the business quarter of the city the natural formation of the surface of the ground on which the pavement was laid was not level, and it appears that in the concrete pavement, which followed the natural formation of the ground, there was a gradual elevation carrying it from the lower level to the higher one. In this rise or elevation there was a block of concrete about six feet wide with a smooth and, as said by some of the witnesses, a very slick surface, that sloped with the pavement about two inches to the foot, and also sloped toward the curbing, forming at its highest point what is described by the witnesses as a bulge in the pavement; and it was at or near the highest point in this block of concrete that Mrs. Graves, while walking along the pavement in the usual way, slipped and fell.

It further appears that this block of concrete had been put in the pavement when it was reconstructed about three years before the accident to Mrs. Graves and that Mrs. Graves, who had been a resident of Lebanon for a number of years, had many times walked on the pavement at this place without meeting with any mishap, although it had for some three years been in the same condition that it was when she fell.

As illustrating the danger to which pedestrians were subjected while walking on this sloping block of concrete, Edgar Bowman, who was employed as a clerk in a store fronting on the pavement at this point, was asked and said:

"Q. Mr. Bowman, I will get you to state whether or not the place where Mrs. Graves fell is slick or rough. A. Very slick. Q. State whether or not it is slicker during wet weather or dry weather. A. I can't see any difference; it's just about the same; about as many people fall when it is dry as they do when it is wet. Q. On that sloping place, the exact place where Mrs. Graves fell, upon the occasion complained of, or within a few inches of that place, state whether or not you have seen anybody fall or slip there at that place. A. At the place where she fell? Well, I don't know whether it would be the exact place, but I've seen lots and lots of people fall there. Q. How often have you seen people slip and fall there? A. Every day since that new place has been down there. Q. How long has it been put in there? A. I think about two years."

James Phillips, after saying that he was a resident of Lebanon and very familiar with the pavement in question, was asked and answered the following questions:

"Q. State whether or not you have seen people slip or fall prior to April 22d (that is, the day Mrs. Graves fell) at the place on the pavement where Mrs. Graves fell. A. I think I have. I have seen several fall there. Q. State whether or not you have seen anybody slip there since this accident. A. I think the last one was about 10 or 12 days ago. A boy slipped there and fell."

J. E. Edmonds, who had been engaged in the mercantile business on Main street near this place many years, was asked:

"Do you know where Mrs. Graves slipped and fell? A. Yes, sir; I know about where she fell. Q. State whether or not you have seen anybody slip or fall at the place where Mrs. Graves fell. A. Yes, sir. Q. State whether or not at that place you have seen anybody slip or fall prior to April 22, 1916. A. I have seen quite a number slip and fall. Some of them fall and some of them just slip. Q. How often would you say, Mr. Edmonds? A. I don't exactly know. There is hardly a day passes that there is not somebody that slips there. Q. Since April 22, 1916, have you seen anybody slip or fall at that particular point? A. I have. Q. How many would you say? A. Quite a number. I don't know exactly how many. I never paid any particular attention or kept any account of them."

Dr. J. T. Elliott, whose place of business was near by where Mrs. Graves fell, testified:

"Q. State whether or not you go down on that side of the street. A. Well, sometimes I do, but I do not always get clear in front of it; I go out of the way of it. Q. I will ask you whether you are acquainted with the sloping place in the pavement. A. I ought to be; I have slipped there several times. Q. Have you slipped there since that accident? A. No; I haven't, because I go around it."

A. Louis Edmonds, whose store was next door to Bowman's in front of whose place Mrs. Graves fell, testified:

"Q. State whether or not prior to the accident to Mrs. Graves you have seen any one slip or fall there at that place. A. Yes; I have. Q. How often? A. Oh, I expect I have seen a hundred people fall there or slip. It was a very frequent occurrence, a daily occurrence. Q. State whether it is slicker when it is dry or wet. A. It is slicker when it is dry. It was a dry day when Mrs. Graves fell."

There was no attempt to contradict the evidence of these witnesses as to the numbers of times persons had fallen or slipped on this pavement at this point.

There was also evidence by experienced concrete men who had made many concrete pavements that the surface of this elevated block of concrete could have been made reasonably safe for public travel in five or six different ways that would have converted the smooth and slippery surface into a rough or grooved surface.

But, conceding that the surface of the pavement at the point in question was so smooth and slippery as to cause many persons walking on it to fall or slip, and that this condition had existed for some three years before the accident to Mrs. Graves, the argument is made that, as the surface of the ground had a natural grade or elevation, the city authorities had the right to construct or permit the construction of a pavement conforming to this natural grade; that when a city pursuant to a plan adopted by its council constructs a street or pavement that is free from ordinary defects or obstructions, although it may run at an elevation conforming to the natural surface of the ground, the city cannot be held liable in damages for injuries that may happen to travelers who are themselves exercising care for their own safety.

In support of this contention our attention is called to Teager v. City of Flemingsburg, 109 Ky. 746, 60 S.W. 718, 22 Ky. Law Rep. 1442, 53 L.R.A. 791, 95 Am.St.Rep. 400, in which the court adopted the prevailing rule that municipal corporations in the improvement of streets and public places have the right to adopt such plans and specifications as appear to them reasonable and proper under the circumstances without subjecting the city to liability for accidents that may happen on account of the nature of the plan adopted, in conformity to which the improvement is made. But the court was careful to say:

"But we rather incline to the view that, while the city governing body may exercise its discretion in the selection of a plan of street improvement if the plan adopted is one palpably unsafe to travelers, the city would be liable.

But when the plan is one that many prudent men might approve, or where it would be so doubtful upon the facts whether the street, as planned or ordered by the city governing board, was dangerous or unsafe or not, that different minds might entertain different opinions with respect thereto, the benefit of the doubt should be given the city, and it should not be held liable."

To the same effect is Carroll's Adm'r v. City of Louisville, 117 Ky. 758, 78 S.W. 1117 (25 Ky. Law Rep. 1888).

Again, in Clay City v. Abner, 82 S.W. 276, 26 Ky. Law Rep. 602, a street accident case, the court said:

"We understand the rule to be that it is for the town council to determine whether a public way shall be improved at all, and if it is, the manner and extent of it. They are selected particularly with reference to their fitness and interest in such matters. Unless the plan that they adopted is one so obviously dangerous as would show a failure to consider, or a purpose to misconstruct the work, the judgment of the governing body of the town as to the plan is conclusive. The town is not liable in damages for accidents that may occur on the highway, because the very best plan or even a better one in the view of the jury, was not adopted."

To the same effect is City of Louisville v. Norris, 111 Ky. 903, 64 S.W. 958, 23 Ky. Law Rep. 1195; Breckman v. City of Covington, 143 Ky. 444, 136 S.W. 865.

In McCourt v. City of Covington, 143 Ky. 484, 136 S.W. 910, another street accident case, the court said:

"The city has exclusive control in the construction of its streets, sidewalks, sewers, catch-basins, etc., and hence may determine how the sewers shall be run and where the catch-basins shall be located, and no ground of complaint is afforded because the sewers are so run as to require the catch-basins to be located in the sidewalk, unless the plan adopted for their construction is inherently dangerous, or, after being constructed, they are suffered or permitted to become and remain out of repair."

In the late case of Tudor v. City of Louisville, 172 Ky. 429, 189 S.W. 456, the court, after referring to a number of authorities, said:

"We would not be understood as holding that a city would not be liable under any circumstances because of smoothness and

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