City of Louisville v. Keher

• Decision Date: 11 March 1904
• Citation: 79 S.W. 270,117 Ky. 841
• Parties: CITY OF LOUISVILLE v. KEHER.
• Court: Kentucky Court of Appeals

79 S.W. 270

117 Ky. 841

CITY OF LOUISVILLE v. KEHER.

Court of Appeals of Kentucky.

March 11, 1904

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

"To be officially reported."

Action by Leo Keher against the city of Louisville and others. From a judgment for plaintiff, the city appeals. Affirmed.

Henry L. Stone, for appellant.

Kohn Baird & Spindle, O'Neal & O'Neal, and R. L. Greene for appellee.

HOBSON J.

Between 9 and 10 o'clock on the night of July 11, 1899, appellee Keher, was riding on a tandem bicycle with a young lady (the lady being in front) along Jackson street, near Green, in Louisville, Ky. They were riding a little to the east of the middle of the street. The place was dark from the shade trees obstructing the electric light. The front wheel of the bicycle struck a rock, 8 by 14 by 20 inches. The wheel was crushed, and both riders were thrown down. The stone was at the edge of a mortar bed. The young lady was thrown over in the mortar bed, and the appellee, who was on the rear seat was thrown into a pile of rock, fracturing the arch over his right eye, severely cutting the scalp, and injuring his eardrum. By reason of an internal hemorrhage, the optic nerve of the right eye was destroyed; his ear inflamed, and gave him great pain. The right arm was also affected, but gradually this got right, and the hearing in the ear was not permanently impaired, but the right eye is entirely blind. The left eye also became inflamed, and is much impaired, although this appears from the evidence to be due to another cause. The plaintiff was studying medicine, but, as his sight got so that he could not read, he had to give that up. His sufferings from the injury to his ear and the atrophy of the optic nerve were very great. He filed this suit against the city and others to recover for his injuries. The jury found a verdict against the city for $7,500, on which the court entered judgment, and the city appeals.

On February 23, 1899, the city issued a permit to St. Boniface Church to build a one-story brick and stone church on Green street, near Jackson, and on May 12, 1899, it issued a permit for the building of a three-story brick monastery on the northeast corner of Jackson and Green. By an ordinance of the city regulating the use of public ways it is provided, in substance, that for the purpose of erecting houses or other improvements adjacent to any street the person making the erection may use not more "than one-third of the width of the said street fronting said improvement for material for making and conducting said improvements," all such obstructions to "be safely guarded in such manner and with sufficient necessary red lights at night as to protect all those traveling or passing upon such street." (See Compilation of Ordinances 1901, 320, 321.) In erecting the buildings referred to, the contractors had placed in Jackson street a pile of bricks and rock; also a mortar bed, which extended out nearly to the center of the street; and had placed around the mortar bed foundation stones of the dimensions above given to protect it from wagons passing along the street. The proof for the plaintiff by a number of witnesses was that there were no lights of any sort on the obstruction, or about it; that it had existed in the street for several weeks, with the knowledge of the officers of the city; and that for two or three nights, at least, before the plaintiff was hurt, it was lighted in no way. It was a public and much-used street of the city, paved with granite. The plaintiff was ignorant of the obstruction, and unable to see it from the want of light. He was riding along about four or five miles an hour, when his wheel struck the stone. The proof for the city tended to show that the boys in the neighborhood had given trouble about the lanterns; that a few nights before, one of its officers had gotten a lantern, and put it on the obstruction; and that on the night in question the lights were in position and burning. On the question of light, however, the great weight of the evidence was with the plaintiff. As to who placed the obstruction in the street and left it unlighted the evidence is very unsatisfactory. There were separate contractors for the stonework, the brickwork, the plastering, and the putting in of the furnace and engine. Each of these denied that the mortar bed was his, or each tried to put the blame on somebody else. The contractor for the furnace and engine was not sued. The action was dismissed as as to the contractors for the stonework and the plastering. The jury found in favor of Hoertz, the contractor for the brickwork. This threw the entire liability on the city.

The court, of its own motion, instructed the jury as follows: "(1) The court instructs the jury that it is the duty of the defendant the city of Louisville to keep its streets and highways in a reasonably safe condition for use by the public, and, if it is necessary that a part of the street be used as a place of deposit for material for the erection of a building adjacent to the said street, it is the duty of the person using the street as a place of deposit for such material to protect persons using the said street at night from injury by giving notice or warning of the obstruction to the street by placing sufficient lights upon or near the said material to give timely warning to other persons using the said street; and it is the duty of the defendant the city of Louisville to exercise ordinary care in causing the said warning to be given by persons to whom it may have given a license to use a portion of a public street as a place of deposit for such material. And if the jury shall believe from the evidence that the defendant Fred Hoertz placed the material in Jackson street with which the plaintiff came in contact, and which caused his injury, and the presence of said material in the street was not indicated by sufficient lights to give reasonable and timely warning to persons using the street as the plaintiff was then using it, and by reason thereof he was caused the injuries of which he complains, and he did not, by negligence upon his part, help to cause, or bring about his injury, but for which contributory negligence, if any there was, he would not have been injured, then the law is for the plaintiff as against the defendant Hoertz, and they should so find. (2) If the jury find that the defendant Hoertz or his employés placed the said obstruction in the street, and failed to give warning of its presence, as mentioned in instruction No. 1, and they find for the plaintiff, and they shall believe from the evidence that the defendant the city of Louisville did not exercise ordinary care to have the said notice or warning given of the obstruction to the said street, then the law is for the plaintiff against the city as well as against the said Hoertz. (3) But unless the defendant Hoertz, or some of his agents or employés, placed the said obstruction in the street, and failed to give notice of its presence as mentioned in instruction No. 1, the law is for the defendant Hoertz, and the jury should so find. Or, if the plaintiff was negligent, and thereby helped to cause or bring about his injuries, and he would not have been injured but for his contributory negligence, if any there was, the law is for the defendants. (4) If the jury shall find from the evidence that the defendant Hoertz did not place the obstruction in the street, but they shall believe from the evidence that it was placed there by some other person, and the defendant the city did not use ordinary care to give notice of the said obstruction, as mentioned in instruction No. 1, the law is for the plaintiff as against the city, and they should so find."

Over the objection of the city, the court gave the two following instructions asked by the plaintiff: "(5) If the jury find their verdict for the plaintiff, they shall award him against both of the defendants, or against the city of Louisville alone, such a sum of money as they believe from the evidence well fairly and reasonably compensate the plaintiff for the pain and suffering, mental and physical, sustained by him, directly...