City of Louisville v. Brewer's Adm'r

• Decision Date: 18 February 1903
• Citation: 72 S.W. 9
• Parties: CITY OF LOUISVILLE v. BREWER'S ADM'R.
• Court: Kentucky Court of Appeals

72 S.W. 9

CITY OF LOUISVILLE v. BREWER'S ADM'R.

Court of Appeals of Kentucky.

February 18, 1903

Appeal from circuit court, Jefferson county, common pleas division.

"Not to be officially reported."

Action by William H. Brewer's administrator against the city of Louisville and another. Judgment for plaintiff, and the city appeals. Affirmed.

H. L Stone, for appellant.

B. H Young, M. W. Ripy, and Edwin C. Waide, for appellee.

BURNAM C.J.

This action was brought by the appellee, James W. Brewer, as the administrator of Wm. M. Brewer, deceased, against the appellant, the city of Louisville, and Clara Kleinhenz, for damages for the death of his intestate. The particular acts of negligence relied on for recovery, set out in the amended petition, are that the defendant, by its agent or servants with negligence, and without regard to the rights of the public to the free and unobstructed use of Rawlings street erected or permitted to be erected or put up in front of the premises owned by Kleinhenz certain wooden posts, so near to the yard fence in front of her premises as to obstruct the pathway, and so as to make a dangerous obstable to the public and those passing along and using the street, and that it was negligently maintained and allowed to remain in its position by the appellant, its agents and servants; and that by reason thereof appellee's intestate sustained the injuries which resulted in his death. The defendant in its answer, denied all the material allegations of the petition, and especially that Rawlings street was at the time set out in plaintiff's petition, or at any time, a street, highway, or thoroughfare of the city, or that it had ever been dedicated for the use of the public as a street, or was under the charge or control of the defendant at the time of the accident complained of, or that it was its duty to have kept it free from obstructions, or that the post which caused the injury was either erected or permitted to remain at the point indicated, to the danger of the public using the said street. And in the second paragraph of the answer it pleads contributory negligence on the part of appellee's intestate, which helped to bring about his injury, and but for which it would not have happened. The reply of plaintiff denied all the material allegations of the answer. The cause was tried out before a jury, and resulted in a verdict in favor of the appellee for $1,000, on which the court entered a judgment against the city; the petition having been previously dismissed as to the other defendant. And the defendant appeals, and asks a reversal--First, on the ground that appellee's petition, as amended, does not state a cause of action, and is insufficient to support a verdict and judgment; and, second, that the court erred in excluding evidence offered by the defendant to show that Rawlings street had never been accepted as a public street of the city, and misinstructing the jury on this point.

We will first consider the last ground relied on, and, to do so, it is necessary that we should give a brief history of the facts disclosed by the record as to the existence of Rawlings street: In September, 1895, a considerable boundary of territory which theretofore constituted a part of Jefferson county was annexed to the city of Louisville. Previous to this annexation what is known now as "Rawlings Street" was a county road, used by the public as such, and has been so used for a considerable time. A number of houses had been built upon the property adjacent, which fronted the road; and before it was annexed to the city a cinder path had been built along the edge of the road for the use of pedestrians, and three or four posts, one of which caused the accident to decedent, had been erected along the outside edge of the cinder path for the purpose of preventing wagons and other vehicles from being driven on or over it. The path was about 4 or 5 feet wide, and the post which occasioned the injury stood nearly in the middle thereof, about 1 1/2 feet further in than the others. It was about 2 1/2 feet high and about 6 or 8 inches square, and its top had been gnawed or split to a sharp point. After this portion of the county road was taken into the city limits by the annexation of the territory, it was continued in use as a public thoroughfare, and the property fronting thereon assessed for taxation, by the city of Louisville, and appears, with its dimensions, upon all the official maps of the city published subsequent to the annexation, beginning with the year 1896. On the night of October 30, 1897, W. M. Brewer, his son S. B. Brewer, and his grandson Ernest Qure were walking along Rawlings street; and William Brewer (quite an old man) stumbled over the post which stood in the center of the path, striking the top of the post with the left side of his abdomen, near the groin, and in consequence thereof the wall of the abdomen was broken, and the bowels came out. He died the next day, as a result of the injury.

It is insisted for appellant that, to authorize a recovery in this proceeding, it was necessary for appellee to establish the fact that Rawlings street had been formally accepted as a public street of the city of Louisville by its council, or that they had taken control of it and improved it in some way. And the appellant offered to, prove by Messrs Claybrooke and Breed, engineers in the employ of the city, that the council had done neither. An objection was sustained by the trial court to this testimony, and this is relied on as one of the main grounds for a reversal. Elliott on Roads and Streets, ...