City of Louisville v. Michels

• Decision Date: 21 January 1903
• Citation: 114 Ky. 551,71 S.W. 511
• Parties: CITY OF LOUISVILLE v. MICHELS.
• Court: Kentucky Court of Appeals

71 S.W. 511

114 Ky. 551

CITY OF LOUISVILLE v. MICHELS.

Court of Appeals of Kentucky.

January 21, 1903

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

"To be officially reported."

Action by John Michels against the city of Louisville. Judgment for plaintiff. Defendant appeals. Affirmed.

Henry L. Stone, for appellant.

Augustus J. Bizot and Oneal & Oneal, for appellee.

PAYNTER J.

The appellee for some years had been a driver of a patrol wagon in the city of Louisville. Previous to August 23, 1899, he had driven an uncovered wagon. On that date he was driving a patrol wagon to which were attached two horses. It had been used at the Central Police Station, but had recently been sent to the station where appellee was located. While driving on Main street the top of the wagon collided with the limb of a shade tree about six or eight inches in diameter, which projected over the street so low as to come in contact with the top of the wagon, which caused the horses to break the kingbolt, thus detaching the fore wheels from the bed of the wagon, and precipitating him from his seat to the street, resulting in such serious injuries to his leg that after 10 months of great suffering it became necessary to amputate it to save his life, and, as a result of the fall, his left arm was seriously injured. He sought to and did recover judgment against the city upon the grounds that the shade tree, being within the corporate limits of the city of Louisville, was permitted to grow and branch over the street in such a manner as rendered it dangerous to persons driving along the street, and that the city knew of its condition, and failed, after reasonable delay, to remove it. The evidence tended to show that Michels' duties required him to drive at a considerable rate of speed to and from different parts of the city in obedience to demands of the police department for the purpose of conveying prisoners to and from the police stations, and that while driving along the street, and passing a wagon loaded with tobacco stems, drawn by four mules, the top of the patrol wagon, as above stated, was struck by the projecting limb. The case was prepared and tried upon the idea that the appellee was entitled to recover as would have been any citizen driving over the street and who had received an injury under the circumstances detailed.

It is urged upon the part of the city that, as Michels was a servant in its employ, he had an equal opportunity of knowing the condition of the street as did the master, and that he should have negatived contributory negligence in his petition by averring that he did not know the condition of the street and did not have an...