City of Louisville v. Bridwell

• Decision Date: 15 November 1912
• Citation: 150 S.W. 672,150 Ky. 589
• Parties: CITY OF LOUISVILLE v. BRIDWELL d
• Court: Kentucky Court of Appeals

150 S.W. 672

150 Ky. 589

CITY OF LOUISVILLE v. BRIDWELL d

Court of Appeals of Kentucky.

November 15, 1912

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

Action by Gracie Elizabeth Bridwell against the City of Louisville. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Clayton B. Blakey, Leon P. Lewis, and Huston Quin, all of Louisville for appellant.

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

SETTLE J.

The infant appellee, Gracie Elizabeth Bridwell, suing in her own right and by her mother as statutory guardian, recovered against the appellant, city of Louisville, in the court below a verdict and judgment for $10,000 by way of damages for the loss of a leg and other injuries to the lower part of her body, caused, as alleged, by the negligence of appellant in failing to keep one of its streets in a condition reasonably safe for the use of the public, as a result of which one of its fire engines was made to collide with a wagon in which the infant appellee, together with three other children and her mother, was at the time riding. Appellee was thrown from the wagon to the street by the force of the collision, and the bones of her left leg crushed, so that its amputation at the hip necessarily resulted. The appellant complains of the judgment, and by this appeal seeks its reversal.

Appellant's answer traversed all averments of the petition, charging that appellee's injuries were caused by its negligence, either in failing to keep its street in repair or otherwise, and alleged that the fire engine collided with the wagon in which appellee was riding because of the running away of the horses attached to the fire engine and the driver's inability to control them; and, furthermore that in the matter of receiving her injuries appellee was herself guilty of contributory negligence, but for which they would not have been sustained. The issues were completed by appellee's filing a reply which controverted the affirmative matter of the answer. Three grounds are urged by appellant for the reversal of the judgment: (1) That, as the maintenance of a fire department is a governmental function, it is not liable for injury caused by a runaway fire engine, even if a defect in the street caused or contributed to the injury. (2) That the verdict is unsupported by and contrary to the evidence. (3) Misconduct of appellee's counsel in argument to the jury. (4) Error of the trial court in instructing the jury, and refusing an instruction asked by appellant.

Appellant's first contention is in our opinion untenable. It is true that in maintaining a fire department for the protection of the lives and property of its inhabitants the city of Louisville performs a public or governmental duty imposed upon it by law, and for that reason it cannot be held liable for injuries resulting from defects in the fire engines or other appliances appertaining to the fire department, or from their negligent use by the firemen or other employés of the fire department. The law on this subject is well stated in Burdick's Law of Torts, § __, as follows: "There is a substantial agreement that it (the city) is not liable for the torts of its fire or police departments, nor for those of its boards of health or education; nor for those of any other officers, agents or servants, in the discharge of functions which primarily belong to the state, but the performance of which it has delegated to the municipality. ***" In numerous cases the doctrine thus announced was held by us to release cities and towns of responsibility for the torts of their agents. Twyman's Adm'r v. City of Frankfort, 117 Ky. 518, 78 S.W. 446, 25 Ky. Law Rep. 1620, 64 L. R. A. 572, 4 Ann. Cas. 622; Pollock's Adm'r v. City of Louisville, 13 Bush, 221, 26 Am. Rep. 260; Jolly's Adm'x v. Hawesville, 89 Ky. 279, 12 S.W. 313; Prather v. Lexington, 13 B. Mon. 559, 56 Am. Dec. 585; Ernst v. City of West Covington, 116 Ky. 850, 76 S.W. 1089, 25 Ky. Law Rep. 1027, 63 L. R. A. 652, 105 Am. St. Rep. 241, 3 Ann. Cas. 882; Clark v. Nicholasville, 87 S.W. 300, 27 Ky. Law Rep. 974; Jones v. City of Corbin, 98 S.W. 1002, 30 Ky. Law Rep. 374; Board of Park Commissioners v. Prinz, 127 Ky. 460, 105 S.W. 948, 32 Ky. Law Rep. 359; Having v. Covington, 78 S.W. 431, 25 Ky. Law Rep. 1617; Schwalk's Adm'r v. City of Louisville, 135 Ky. 570, 122 S.W. 860, 25 L. R. A. (N. S.) 88. And also held in the cases further cited to exempt state and eleemosynary institutions from such liability. Leavell v. Western Kentucky Asylum, 122 Ky. 213, 91 S.W. 671, 28 Ky. Law Rep. 1129, 4 L. R. A. (N. S.) 269, 12 Ann. Cas. 827; Williamson v. Ind. School of Reform, 95 Ky. 251, 24 S.W. 1065, 15 Ky. Law Rep. 629, 23 L. R. A. 200, 44 Am. St. Rep. 243; Simons v. Gregory, 120 Ky. 116, 85 S.W. 751, 27 Ky. Law Rep. 509. In Schwalk's Adm'r v. City of Louisville, supra, we said: "According to the great weight of authority, cities and towns are not liable for negligence in the performance of a public, governmental duty imposed upon them for public benefit, and from which they in their corporate or proprietary capacity derive no pecuniary benefit. However, the universally recognized liability of such municipalities for negligence in not keeping their streets in repair affords an exception to the general rule, which, as said in Snider v. City of St. Paul, 51 Minn. 466, 53 N.W. 763, 18 L. R. A. 151 (a case almost identical in point of fact with this): 'We think the courts would do better to rest either upon special consideration of public policy or upon the doctrine of stare decisis than to attempt to find some strictly legal principle to justify the distinction.' ***"

So, conceding the nonliability of the appellant for the negligence of its firemen, nevertheless, if the collision of the fire engine in their charge with the wagon in which appellee was riding resulted solely from a defect in the street, the defect, if it was such as to prevent the street from being reasonably safe for ordinary travel by the public, and was known, or by the exercise of ordinary care might have become known to appellant in time to repair it before the accident, must be regarded as the efficient or proximate cause of appellee's injury.

There is, however, another aspect of the law applicable to the case it will be well to here notice. Although the defect in the street may have contributed to the collision between appellant's fire engine and the wagon resulting in appellee's injury, if at the time the horses attached to the fire engine were from fright running away and beyond the control of the driver, whether such fright resulted from the negligence of the driver or other cause, and appellee's injuries would have been sustained, in the absence of the defect in the street, by the running away of the horses alone, then the defect in the street cannot be regarded as the proximate cause of the injury.

It seems to be well settled in law that if the injury is the result of concurring causes for one of which only the defendant is responsible he must answer, or where the injury is the combined result of negligence and accident, the negligent party must answer unless the injury would have happened if it had not been negligent. 1 Thompson, § 68; City of Louisville v. Hart's Adm'r, 143 Ky. 171, 136 S.W. 212, 35 L. R. A. (N. S.) 207; Whiteman-McNamara Tobacco Co. v. Warren, 66 S.W. 609, 23 Ky. Law Rep. 2120; 29 Cyc. 498; City of Louisville v. Johnson, 69 S.W. 803, 24 Ky. Law Rep. 685.

The cases cited by counsel for appellant are not in conflict with the principle announced. In Patch v. City of Covington, 17 B. Mon. 722, 66 Am. Dec. 186, it was held that the city was not liable because its firemen, owing to inadequate water supply, were unable to extinguish a fire which destroyed plaintiff's property. In Greenwood v. City of Louisville, 13 Bush, 226, 26 Am. Rep. 263, it was held that the plaintiff could not recover of the city for injuries resulting to him from the negligent act of the fireman in permitting the fire engine to run upon the sidewalk and against him. In Davis v. City of Lebanon, 108 Ky. 688, 57 S.W. 471, 22 Ky. Law Rep. 384, it was held that the city was not liable for injury to the plaintiff's goods by water thrown upon them from the city's fire apparatus.

The decision as to the nonliability of the city in each of these cases rests upon the doctrine of governmental function, and the same is true of Sandusky v. Central City, 58 S.W. 516, 22 Ky. Law Rep. 669; Paducah Lumber Co. v Paducah Water Supply Co., 89 Ky. 340, 12 S.W. 554, 13 S.W. 249, 11 Ky. Law Rep. 738, 7 L. R. A. 77, 25 Am. St. Rep. 536; Hazel v. Owensboro, 99 S.W. 315, 30 Ky. Law Rep. 627, 9 L. R. A. (N. S.) 235. In our...