City of Louisville v. Wheeler
| Decision Date | 18 December 1945 |
| Parties | City of Louisville v. Wheeler. |
| Court | United States State Supreme Court — District of Kentucky |
1. Municipal Corporations. — Whether defect in sidewalk because of projection of concrete block above adjoining block constitutes actionable negligence on city's part is question for jury, regardless of height of such projection.
2. Municipal Corporations. — Whether pedestrian injured in fall on defective sidewalk was contributorily negligent in watching heavy traffic at street intersection some 30 feet in front of her at time of fall was question for jury.
3. Municipal Corporations. — Whether one injured while using street was proceeding with proper care for his own safety at time of injury is question for jury.
4. Municipal Corporations. — One using public sidewalk is not required to anticipate danger, but may proceed on assumption that walk is in reasonably safe condition.
5. Trial. — Refusal to submit to jury question whether elevation of concrete block about 1 3/4 inches higher than adjoining block in sidewalk was too trivial to render walk not reasonably safe for pedestrians exercising ordinary care was not error, in view of instructions submitting question whether sidewalk was in reasonably safe condition for pedestrians' use.
Appeal from Jefferson Circuit Court.
Lawrence G. Duncan, George P. Butler, and Richard H. Hill for appellant.
William Kiel for appellee.
Before B.H. Farnsley, Judge.
Affirming.
The appellee, Mrs. Cora Brickey Wheeler, obtained a judgment in the sum of $990 against the City of Louisville for injuries which she sustained in a fall on a defective sidewalk. In urging reversal the City insists that (1) no actionable negligence was shown on its part; (2) Mrs. Wheeler was guilty of contributory negligence; and (3) the court erroneously instructed the jury. While the City insists that Mrs. Wheeler's injuries were much less severe than she claimed, there is no contention that she did not sustain the fall or that the damages are excessive.
At the point where Mrs. Wheeler fell one concrete block extended approximately 1 3/4 inches above the adjoining one. This condition was caused by the growth of a tree root under the elevated block and had existed for some time. It is the City's contention that the projection of one concrete block in the sidewalk 1 3/4 inches above the adjoining one is not such a serious defect, elevation, depression, or obstruction in the walkway as to charge the City with actionable negligence. The City insists that it is virtually impossible to keep all of its sidewalks in perfect condition, and that it must not be considered as an insurer of the safety of all pedestrians.
We are asked to set a limit for defects such as the one in question beyond which the question of negligence would be one for the jury and under which it would be held as a matter of law that the City was not negligent. Such a course has been followed in the state of Michigan and other jurisdictions for a number of years. Northrup v. City of Pontiac, 159 Mich. 250, 123 N.W. 1107, and cases cited therein. The Michigan rule is that an inequality of two inches or less in a sidewalk does not render it unfit and unsafe for public travel; but this Court refused to adopt the Michigan rule in the case of City of Louisville v. Haugh, 157 Ky. 643, 163 S.W. 1101, 1102. In that case it was said:
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