City of Madisonville v. Pemberton's Adm'r

• Decision Date: 17 June 1903
• Citation: 75 S.W. 229
• Parties: CITY OF MADISONVILLE v. PEMBERTON'S ADM'R.
• Court: Kentucky Court of Appeals

75 S.W. 229

CITY OF MADISONVILLE v. PEMBERTON'S ADM'R.

Court of Appeals of Kentucky.

June 17, 1903

Appeal from Circuit Court, Hopkins County.

"Not to be officially reported."

Action by H. R. Pemberton's administrator against the city of Madisonville. Judgment for plaintiff, and defendant appeals. Affirmed.

Jerrold A. Jonson, Polk Laffoon, J. Fletcher Dempsey, E. D. Morrow and Wm. Worthington, for appellant.

Gordon & Gordon & Cox and J. F. Gordon, for appellee.

BARKER J.

On the 12th day of February, 1900, H. R. Pemberton, while walking along the sidewalk of Lawrence street, in Madisonville, Ky stepped into a hole, and was thrown down, his side striking the edge of the curbing, inflicting an injury, from the effects of which, it is claimed, he died in the following August. W. J. Cox, having been appointed administrator of his estate, instituted this action in the Hopkins circuit court to recover of the city of Madisonville damages for the injury inflicted upon his decedent.

It is alleged in the petition that Lawrence street is one of the public highways of the city of Madisonville; that the defect in the sidewalk by means of which Pemberton was injured was known to appellant, or could have been known to it by the exercise of ordinary diligence, it having existed a sufficient length of time to put the municipality on notice. The answer put in issue the facts as to whether or not Lawrence street was a highway of the city, the negligence of the municipality in regard to the defect in the paving, that the injury complained of caused the death of appellee's decedent, and charged affirmatively that the accident was caused by the contributory negligence of appellee's decedent. The reply, as amended, controverted the affirmative allegations of the answer, and thus the issues were made up.

The material facts, as shown by the evidence, are as follows: On the evening of the 12th of February, 1900, at the hour of half past 7 o'clock, appellee's decedent, in company with his son, was walking along the sidewalk on Lawrence street, when he stepped into a hole about a foot and a half long, and from 15 to 18 inches in depth, which threw him down, striking his side against the edge of the curbing. He was extricated and helped to his feet by his son, and went on his journey, evidently thinking that he was not seriously injured, although he complained at the time of being hurt. On the following morning a considerable swelling or knot appeared on his side where the injury was inflicted, and he seems never to have been able to work at his business, except in a most desultory manner, up to his death. The sidewalk in which the defect causing the injury existed was not made by the city, but the carriageway of Lawrence street had been graded under an order of the municipality, and the curbing placed along its edge, thus separating the street proper from the sidewalk. The walkway was then made by the citizens filling in between the property line and the curbing with cinders or ashes. The hole by means of which the decedent was injured seems to have been caused by the cinders being washed out under the curbing into the street, owing, it is claimed to the wrongful or negligent act of one of the city's employés, who, while engaged in some work for the city in the street, had undermined the curbing, thus taking away the support of the cinders which constituted the walkway, and, as a result of hard rain, the cinders had been washed under the curbing and out into the street, thus creating the hole by means of which decedent was injured. Upon a trial of the case the jury returned a verdict in favor of appellee, awarding damages against the city in the sum of $3,000. The motion for a new trial having been overruled, the appellant has brought the case here for review.

The evidence clearly established that Lawrence street was one of the highways of the city of Madisonville, and while it had not, by official action, improved the sidewalk, it had graded the street, put in the...