City of Louisville v. Frank's Guardian

• Decision Date: 04 June 1913
• Citation: 157 S.W. 24,154 Ky. 254
• Parties: CITY OF LOUISVILLE v. FRANK'S GUARDIAN.
• Court: Kentucky Court of Appeals

157 S.W. 24

154 Ky. 254

CITY OF LOUISVILLE v. FRANK'S GUARDIAN.

Court of Appeals of Kentucky.

June 4, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Theodore L. Frank's Guardian against the City of Louisville. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Turner J., dissenting.

Huston Quin and Grover G. Sales, both of Louisville, for appellant.

O'Doherty & Yonts, of Louisville, for appellee.

HOBSON C.J.

The commissioners of sewerage of Louisville in May, 1909, were constructing a sewer in Logan street, and had taken possession of the street for this purpose. While the work of digging the sewer was in progress, a drain was dug to prevent the water from going into the sewer trench. Theodore Frank, a little boy, was playing in the street and fell into the hole and was injured. This suit was brought by him against the city of Louisville to recover for his injuries. The proof for him on the trial showed that the hole was not properly lighted and barricaded, and that, by reason of the negligence of the servants of the sewerage commission in failing to light the hole or barricade it, his injury occurred.

The question to be determined is, Was the city liable for the negligence of the servants of the sewerage commission? In Smith's Adm'r v. Commissioners of Sewerage, 146 Ky. 562, 143 S.W. 3, 38 L.R.A. (N. S.) 151, and in Jones & Co. v. Ferro Concrete Construction Co., 154 Ky. 47, 156 S.W. 1060, we held that the sewerage commission is not responsible for the negligence of its servants, and under the rule laid down in those opinions no action lies against the sewerage commission for the injuries here sued for. But it is insisted that, although the sewerage commission is not liable, the city has charge of its streets and is liable if a hole is negligently left in the street.

The sewerage commission is a distinct and independent corporation created by the act of February 19, 1906 (Ky. St. § 3037b). The purpose of the act was to secure for the city an adequate system of sewers for the protection of the public health; the money being provided by an issue of bonds upon a vote of the people. Sections 10 and 15 of the act provide:

"And when any portion of said sewerage system shall be complete and ready for active operation, the commission shall restore the street, alley or other public way through which said completed work extends, to its original condition as near as practicable, and then notify the board of public works and turn over said completed portion to such board, and the same shall thereafter be under the exclusive control of said board of public works." Section 10.

"Section 2825, Kentucky Statutes, vesting a certain exclusive control in the board of public works, shall, to the extent that it conflicts with this act, stand repealed: Provided, that such exclusive control of the board of public works shall attach and thereafter continue as provided in section 10 of this act." Section 15.

Section 2825, Ky. St., which is thus suspended during the construction of a sewer on any street, is as follows: "The board of public works shall have exclusive control over the construction, reconstruction, cleaning, repairing, platting, grading, improving, sprinkling, lighting and using of all streets, alleys, avenues, lanes, markethouses, bridges, sewers, drains, wells, cisterns, ditches, culverts, canals, streams and water courses, sidewalks, curbing and the lighting of public places."

It will thus be seen that by the terms of the act the board of public works is divested of control over the street, while the sewerage commission has charge of it for the purpose of constructing the sewer and until it notifies the board of public works and turns over the completed portion to the board of public works. The act was declared constitutional in Miller v. City of Louisville, 99 S.W. 284, 30 Ky Law...