City of Louisville v. McGill

• Decision Date: 12 October 1899
• Citation: 52 S.W. 1053
• Parties: CITY OF LOUISVILLE v. McGILL. [1]
• Court: Kentucky Court of Appeals

52 S.W. 1053

CITY OF LOUISVILLE v. McGILL. ^[1]

Court of Appeals of Kentucky.

October 12, 1899

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by Robert McGill against the city of Louisville to recover damages for injury to property. Judgment for plaintiff, and defendant appeals. Affirmed.

H. L Stone, for appellant.

Gardner & Moxley, for appellee.

HOBSON J.

Appellee brought this action to recover damages to his property, at the corner of Twentieth and Maple streets, in the city of Louisville, resulting from the grading of Twentieth street in such a manner as to cause a pond of water on Twentieth street opposite his property. The proof showed that the water remained there for something like 18 months, and that by reason of it the rental value of the property was substantially destroyed. It also showed that the rent of the property was reasonably worth $20 per month, or $360 for the whole time the water was allowed to remain on the street. The jury found a verdict for $350, which was clearly warranted by the testimony.

Appellant relies on the six-months statute of limitation. This section of the act for the government of cities of the first class has been held unconstitutional (City of Louisville v Kuntz [Ky.] 47 S.W. 592), and the court below properly held the action not barred.

Appellee was allowed to amend his petition, and set up damages accruing after the suit was brought and before the trial. This was proper. Brookover v. Hurst, 1 Metc. (Ky.) 665.

It is also insisted that the court did not limit the recovery to the damages to the property, but allowed the jury to find damages for the plaintiff's trouble, and the ill health of the family. If the court had only given instruction 4, it might have been misunderstood by the jury, although it would be clearly understood to limit the recovery to such damages as would fairly compensate appellee for the injury to his property when taken in connection with the three preceding instructions. The whole charge must be read together, and when so considered, could not have misled the jury. We are satisfied, also, that the jury were not misled, from the fact that they found a verdict for $350, or only $10 less than the amount of the rent of the property for the time. The water was not removed from the street in a reasonable time. This was perfectly manifest from the testimony. The...