City of Newport v. Schmit

• Decision Date: 20 May 1921
• Citation: 191 Ky. 585,231 S.W. 54
• Parties: CITY OF NEWPORT ET AL. v. SCHMIT.
• Court: Kentucky Court of Appeals

231 S.W. 54

191 Ky. 585

CITY OF NEWPORT ET AL. v. SCHMIT.

Court of Appeals of Kentucky.

May 20, 1921

Appeal from Circuit Court, Campbell County.

Action by Margaret E. Schmit against the City of Newport and another. From a judgment for plaintiff, defendants appeal. Affirmed.

William A. Burkamp and Brent Spence, both of Newport, for appellants.

P. J Ryan and George Herold, both of Newport, for appellee.

HURT C.J.

This action by the appellee, Margaret E. Schmit, against the appellants, city of Newport and the Frankel Amusement Company, had for its purpose the recovery of damages which she avers that she sustained on account of personal injuries received when she slipped and fell upon the sidewalk in front of the theater owned, conducted, and controlled by the Frankel Amusement Company, and which bore the name of the "Hippodrome." The sidewalk, at the point where the appellee's feet slipped from under her and she fell upon it, is about 12 1/2 feet in width, and all of it is constructed of cement, except a strip 27 feet in length and 3 feet in width, which immediately adjoins the property line in front of the entrance to the theater, and extends into the sidewalk to the distance of 3 feet, and this strip is made of tiles. The entrance into the theater from the sidewalk is through a lobby, which is also paved with tiles, and the portion of the sidewalk made of tiles is a continuation of the floor of the lobby. The basis of the claim for recovery as alleged in the petition as amended, is that the sidewalk upon which the appellee fell and was injured was a sidewalk in the city, under its management and control through its officers, whose duty it was to maintain it in a reasonably safe condition for travel by pedestrians, and, though under such duty, the city permitted the Hippodrome Amusement Company, which in April, 1915, erected the building in which the theater is conducted, to remove the cement sidewalk in front of the building and adjoining its property line to a width of 3 feet and a length of 27 feet, and to substitute for the removed cement a surface made of smooth, glazed, and slippery tiles, with a grade from the property line to the cement of one-half inch to the foot, and that the portion of the sidewalk thus constructed of tiles was rendered dangerous and unsafe for travel by pedestrians, ordinarily shod, by reason of the glazed, slippery, and slick condition of the surface of the tiles, and the slanting surface given to it by the grade upon which it was constructed from the house line to where it joined the cement portion of the sidewalk, and it was this dangerous and unsafe condition which caused the appellee to slip and fall and injure herself. The tiled portion of the sidewalk, which was formed by permitting the Hippodrome Amusement Company to extend the floor of its lobby into the sidewalk to a distance of 3 feet, with the grade as above stated, was the portion upon which the appellee was walking at the time her feet slipped from under her and she fell. The tiles composing the strip were white in color except in the center of the strip, and immediately in front of the lobby, the word "Hippodrome" was constructed of tiles of a different color. The tiled portion of the sidewalk and the name of the theater inserted in it were for the special benefit of the owner of the theater building and the business conducted in it in the way of an advertisement of the building and its business. On the 20th day of June, 1916, the appellant Frankel Amusement Company became or assumed to be the owner of the building, controlled and conducted its business in it until March 16, 1917, when appellee received the injuries complained of. There was some evidence to the effect that the tiled portion of the sidewalk was in the same condition when appellee fell upon it as when it was first constructed, except that from use it had become more slick, and therefore more unsafe and dangerous. It was averred that the city and its officers at all times knew of the dangerous and unsafe condition of the sidewalk, caused by the tiled portion of it, or by the exercise of ordinary care would have known of it, and negligently failed to remedy, or cause to be remedied, the defects in it so as to render it reasonably safe for travel, and the Frankel Amusement Company knew of its injurious character at all times previous to the incurrence of the injuries, but maintained and used the tiled portion of it for its own special benefit, and negligently failed to remove the tiles from the sidewalk, or to otherwise take precautions to render that portion of the sidewalk reasonably safe for pedestrians, and negligence of the city and the amusement company, as before stated, was the proximate cause of the injuries which the appellee received. The foregoing contentions of appellee were denied by the answers of the appellants, and the trial resulted in a verdict by the jury in favor of appellee against the city for the sum of $1,000 in damages, and against the Frankel Amusement Company for the sum of $4,000, and each have appealed.

(a) At the conclusion of the evidence for the plaintiff, and at the conclusion of all the evidence, each of the defendants moved the court for a directed verdict in its favor, and, these motions being overruled, each of them now insists, as a common ground for the reversal of the judgment, that the court erred in thus disposing of their motions. It is not contended nor insisted for either of the defendants that the time which had expired from the construction of the tiled portion of the sidewalk to the time of the injury or from the time the theater came under the control of the Frankel Amusement Company to the time of the injury was insufficient to charge the defendants with notice of its unsafe and dangerous condition, and to have enabled them, with the exercise of ordinary diligence, to have remedied the alleged unsafe condition, but it is insisted for each that the evidence was insufficient upon the issue as to the unsafe condition for travel of the sidewalk to require a submission to the jury. It may be confessed that, if there were no contradictions in the evidence upon that subject, and all of the evidence conduced to prove the conclusions drawn from it by counsel for defendants, they were eminently right in their contention, but when the evidence as to the character of the tiled portion of the sidewalk, with regard to its condition of safety for travel, is examined, it is apparent that the evidence upon that subject is very contradictory, and made necessary a submission to the jury of that issue, and the fact that we would arrive from the evidence at a conclusion different from that at which the jury arrived is aside from the subject, nor will a conclusion upon our part, if we had been the triers upon the facts, that the verdict should have been upon the issue for the defendants, warrant a conclusion that the issue ought not to have been submitted.

While it is not expressly proven that the city authorized the owner of the theater to extend the tile floor of the lobby out into the sidewalk to the distance above stated, such may be inferred from the fact that the work was done under the supervision of an inspector for the city, but whether the city was or was not consulted in the matter is immaterial, since the duty of a municipality to keep and maintain its sidewalks in a reasonably safe condition for public travel applies to the entire width of a sidewalk, and for a failure upon the part of the municipality to exercise ordinary care to keep and maintain its sidewalks in a reasonably safe condition for travel by pedestrians, after notice of its unsafe condition, or when by the exercise of ordinary care to attend to its duties in that respect it would have had knowledge of the defective condition of the sidewalk, it will be liable for injuries sustained by persons on account of such unsafe condition, if sufficient time has elapsed after notice, or after it is chargeable with notice, within which to have reasonably enabled it to have remedied the conditions. Eagan v. Covington, 166 Ky. 825, 179 S.W. 1026; Louisville v. Hough, 157 Ky. 643, 163 S.W. 1101; Covington v. Belser, 123 S.W. 249; Gnau v. Ackerman, 166 Ky. 258, 179 S.W. 217; Dayton v. Lory, 169 Ky. 94, 183 S.W. 252; West Ky. Telephone Co. v. Pharis, 78 S.W. 917, 25 Ky. Law Rep. 1838.

It is true that municipalities are not guarantors of the safety of persons upon their sidewalks and streets, nor does one have a cause of action merely because he may slip and fall upon a sidewalk, when such result is not caused by an inherent dangerous or unsafe condition of the sidewalk, nor are defects in a sidewalk sufficient to support a cause of action, if in spite of the defects, in the opinion of reasonable men the sidewalk is reasonably safe for public travel, nor does the fact that a fall of rain or snow upon an otherwise safe sidewalk makes it slippery give a cause of action to one slipping down upon it. Many cases supporting these doctrines are cited by the appellants, and of the results in those cases we have no controversy, but the instant case does not seem to come within the principles applicable to the facts of either of the cases cited. There were witnesses who deposed that the tiled surface of the strip of the lobby floor, which extended out into the sidewalk, was as "slick as glass," that it was "intensely slick," and that it was "slippery very slippery." There was evidence tending to prove that the tiles had a hard, very smooth and glazed surface which rendered them inherently slick, and made one ordinarily shod unable to retain the footing upon it necessary to enable him to escape falling. It...