City of Newport v. Miller
| Decision Date | 12 March 1892 |
| Citation | 93 Ky. 22 |
| Parties | City of Newport v. Miller. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CAMPBELL CIRCUIT COURT.
E. W. HAWKINS FOR APPELLANT.
A. T. ROOT, FOR APPELLEE.
CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.
The appellee, John P. Miller, sues for damages for an injury, consisting in the breaking of his arm, caused by his falling over a stump standing in the sidewalk of one of the streets of the city of Newport.
He, when in company with his wife and children, met two ladies going in the opposite direction. The appellee, in order to enable them to pass, stepped near the outer edge of the sidewalk, which was ten feet wide, but only seven feet between the stump and the fence. In doing so he fell over the stump, which was three or four inches within the curbing, and but two feet high and twenty-two inches in diameter. It was a dark night, and it was one hundred and thirty feet to the nearest lamp post, and the evidence tends strongly to show that there was no light burning, even there.
It is urged that the trial court rejected competent evidence offered by the city, and improperly instructed the jury.
The appellant offered to prove that the person who cut down the tree, and who then lived at the place, left the stump with the view of making it a hitching post; also that at other points in the city and at like place in the sidewalk other stumps had been left for the same purpose, and that water hydrants, hitching posts, stepping stones, water and gas plugs, and ash barrels and boxes, left for the convenience of the removing contractors of ashes and garbage, were to be found at like places upon the streets. It was immaterial what the intention of the person who cut down the tree may have been, or whether the objects had been placed and left as claimed upon the streets. His intention furnished no excuse to the city if the stump was in fact an unnecessary and dangerous obstacle. Nor if it improperly allowed other unnecessary and dangerous obstacles to remain in the sidewalk was it any excuse for this one. The question was whether the particular object which caused the injury to the appellee was such an obstruction in the street as rendered the city liable to him for his injury. This evidence was not therefore competent.
The evidence shows that the stump had been there for sixteen months without its being prepared by means of rings or in any other way for use as a hitching post. This period was sufficient to raise implied notice and charge the city with knowledge of its existence and character. (2 Hilliard on Torts, p. 392.)
The jury were, however, properly left to find whether the city had knowledge of it or should have known of it in the exercise of ordinary care.
They were in substance told by the first instruction that it was its duty by the exercise of all the ordinary means...
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