City of Louisville v. Bott's Admrx.

• Decision Date: 17 January 1913
• Parties: City of Louisville v. Bott's Admrx.
• Court: Kentucky Court of Appeals

151 Ky. 578

City of Louisville v. Bott's Admrx.

Court of Appeals of Kentucky.

Decided January 17, 1913.

Appeal from Jefferson Circuit Court. (Common Pleas Branch, Second Division).

LEON P. LEWIS, CLAYTON B. BLAKEY, HUSTON QUIN, for appellant.

ROBT. L. PAGE, O'DOHERTY & YONTS, for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Reversing.

Appellee, as administratrix of the estate of her deceased husband, John F. Bott, recovered of the appellant city of Louisville, in the court below a verdict and judgment for $6,500.00, damages for his death, alleged to have been caused by the negligence of the appellant, in failing to keep its street, known as Monon Avenue, in a reasonably safe condition for the use of the traveling public. The city complains of the judgment and the refusal of the circuit court to grant it a new trial; hence this appeal.

Although numerous grounds were filed in the court below in support of appellant's motion for a new trial, but two of them are relied on for a reversal of the judgment complained of; these are: (1) that Monon avenue was not such a dedicated street of the city of Louisville as to charge it with the duty of keeping it in a reasonably safe condition for the use of the traveling public. (2) That the trial court erred in refusing to instruct the jury, as requested by the city, that the negligence, if any, of the driver of the wagon from which the intestate fell and was killed, was imputable to the latter.

The first of these contentions is manifestly unsound. It appears from the record that an ordinance was passed by the city council in 1903 authorizing the Monon Railroad Company, to lay its tracks in and along Fourteenth street, a regular thoroughfare of the city of Louisville, in consideration of which the Monon Railroad Company agreed to open as a street for public use a strip of land lying parallel to Fourteenth street, and extending from Main street to Market street. Section eight of the ordinance provided:

"The owner of such franchise shall open and maintain for public use, as shown on plat annexed to this ordinance, a driveway running north and south from Main street to Market street lying west of Fourteenth street, as specified by dimensions in said plat."

By section nine of the ordinance it was further provided:

"That the purchaser of the franchise, provided in the ordinance * * * shall within ninety days after the passage of said ordinance, commence work in good faith to construct the tracks mentioned in said ordinance and to open the driveway therein mentioned, extending from Main street to Market street and shall within six months complete the construction of said tracks and open said driveway * * *."

It is shown by the testimony of numerous witnesses that the Monon Railroad Company complied with the terms of the ordinance by opening the driveway or street in question in 1903, since which time the street has been known as Monon avenue and has been constantly used as a public street; during which time, as now, it was lighted by electric lights owned by the city and regularly policed and controlled by it, as any other street within its corporate limits.

Whether any part of it has been kept in repair since it was opened and established, by the city or the Monon Railroad Company, does not appear from the evidence.

The circumstances under which Monon Avenue was established made it as much of a public street as if it had been laid off and dedicated by the owner of the ground and accepted on the part of the city by an ordinance of its General Council, on the recommendation of the Board of Public Works, as required by section 2832, Kentucky Statutes, for it was opened and constructed by the Railroad Company upon an order of the city authorities and as a condition of the Railroad Company's use of Fourteenth street between Main and Market streets, for the laying of its tracks and operation of its trains. Indeed, the ordinance, supra, made it a street upon its completion as such by the Railroad Company, and the city's control of it as such since its completion, together with its use by the public, constituted an acceptance of it by the city as a street. In other words, the contract of dedication and acceptance is contained and expressed in the several provisions of the ordinance. Manifestly, a formal acceptance on the part of the city was unnecessary where it had expressly authorized the construction of the highway, in the first instance, for the use of the traveling public, and its construction was followed by such use of it. City of Louisville v. Hall, 28 R. 1065; Terrell v. Hart, 28 R. 903; Kaye v. Hall, 13 B. Monroe 458.

If it be true, as contended by appellant, that the contract between it and the Monon Railroad Company, requires the latter to keep Monon Avenue in repair, that fact cannot relieve the former of liability for an injury sustained by a person from a defect in the street, which renders it unsafe for use by the traveling public. In Thompson on Negligence, Volume 1, section 1205, it is said:

"The fact that under a municipal ordinance or otherwise, the city or town may be liable to the traveler injured, does not at all exonerate the abutting land owner from liability since he is the primary wrongdoer and since the municipality, if compelled to pay the damages, has an action over against him as such. It is, therefore, not at all necessary that the person injured should first bring an action against the municipality; the primary author of the nuisance and the city are, in theory of law, under a common duty to repair, and are hence jointly and severally liable to the person injured, and the latter has his election to bring his action both jointly or against each separately." Will v. Village of Mendon, 66 N. W. 58.

The doctrine under consideration was approved by us in the case of Webster v. C. & O. Ry. Company, 32 R. 406, with reference to which it is in the opinion said:

"The obligation of the municipality to keep its streets in reasonably safe condition for public travel is unconditional, and this duty it cannot relieve itself of by attempting to shift the responsibility to an abutting owner. If injuries are sustained by reason of defective streets or side-walks, the person injured had a full and adequate remedy against the city and is not required to look to a property owner who might be insolvent, or a non-resident, or for other reasons incapable of being made to respond in damages. If the municipality could, by placing the liability upon the abutting property owner, relieve itself from the duty of keeping its streets in repair, it would have the effect of relaxing its care and supervision of them. Responsibility would be divided to the detriment of the public service."

If right in our rejection of appellant's first contention, of which we have no doubt, it follows that the trial court did not err in refusing the peremptory instruction directing the jury to find for appellant, asked by it at the conclusion of appellee's evidence.

Two things enter into the consideration of appellant's second contention, (1) was there any evidence on the trial which conduced to prove that the fall of appellee's intestate from the wagon, resulting in his death, was caused by the negligence of the driver of the wagon? (2) was there any evidence conducing to prove that the wagon and driver were under the control of the intestate at the time of the accident? If the record furnishes an affirmative answer to each of these questions, there would seem to be no escape from the conclusion that the trial court erred in refusing to submit them, under a proper instruction, to the decision of the jury.

It appears from the bill of...