City of Olive Hill v. Counts

• Citation: 290 Ky. 588
• Parties: City of Olive Hill v. Counts.
• Decision Date: 08 May 1942
• Court: United States State Supreme Court — District of Kentucky

290 Ky. 588

City of Olive Hill v. Counts.

Court of Appeals of Kentucky.

May 8, 1942.

1. Municipal Corporations. — In pedestrian's action for personal injuries sustained by a fall on steps constituting part of a sidewalk, evidence was sufficient to establish negligence of city.

2. Negligence. — Mere proof of negligence is not sufficient to entitle plaintiff to damages, since it must appear that the proven negligence was the proximate cause of the injury, and, even when this is established, plaintiff's action may be defeated if he was contributorily negligent.

3. Evidence. — The Court of Appeals knows as a matter of common knowledge that falls frequently occur on perfectly constructed steps by reason of the slipping of a foot from the tread when the foot has not been placed far enough thereon.

4. Municipal Corporations. — Where pedestrian's testimony was subject to two inferences, one that he had fallen as a result of faulty construction of steps constituting part of a sidewalk, and the other that he had fallen as the result of his own carelessness, pedestrian failed to establish liability of city.

5. Municipal Corporations. — Where pedestrian's fall occurred because of faulty construction of steps constituting part of a sidewalk while pedestrian was using steps which he knew to be dangerous, which it was not necessary or imperative that he use, pedestrian was guilty of contributory negligence as a matter of law and "assumed the risk" of injury from any fall he might sustain.

6. Municipal Corporations. — Failure of a pedestrian to see the defect

or obstruction of a sidewalk on account of diversion of his attention does not as a matter of law establish negligence on his part.

7. Municipal Corporations. — Where pedestrian had negotiated one of irregularly constructed steps constituting part of a sidewalk and was preparing to proceed further knowing he was on steps known to be dangerous, pedestrian was required to use such steps so as to protect himself from injury.

Appeal from Carter Circuit Court.

Theobald, Theobald & Theobald for appellant.

Dysard & Dysard and Wm. Hubert Counts for appellee.

Before R.C. Littleton, Judge.

OPINION OF THE COURT BY JUDGE FULTON.

Reversing.

The city of Olive Hill appeals from a judgment for $1,750 obtained by appellee, A.J. Counts, for damages for personal injuries sustained in a fall on a sidewalk of the city.

There is little dispute as to the facts, which are substantially as follows: In 1926 or 1927, while appellee was police judge of Olive Hill, the owner of property abutting on Railroad Street constructed a sidewalk and, in doing so, placed therein a flight of three steps on account of the necessity to overcome a steep grade. There can be little question that the steps as constructed contained the potentialities of danger to pedestrians using them, since they were very uneven and irregular. The first riser is 8 1/2 inches high and the first tread is 9 1/4 inches deep at one end and 10 inches at the other; the second riser is 6 inches high at one end and 5 1/2 inches at the other; the second tread is 5 1/2 to 6 inches deep; the third riser is 6 inches high at one end and 7 inches at the other. It is readily seen that the irregular dimensions, especially the variation in the second step, would have a tendency to cause one using the steps to fall.

Appellee lived within 300 feet of the steps and had used them several times a day since their construction. He says he protested to the council about them while they were being constructed. On the night he was injured he passed down the steps as he was going to town and remarked that they were dangerous and someone was liable to get hurt on them. It is shown that one or more people had fallen on the steps. On his way back home that night appellee had started up the steps when, after having placed his foot on the second tread and attempting to proceed further, his foot slipped from the second tread and he fell and fractured his kneecap. His own version of how his fall occurred was as follows:

"I was simply going home. I stepped this step right there (indicating) that foot (right foot), then I put this foot right up there just like that, just I judge possibly like I am now, then I went to raise my feet up right to the next one, that foot went right back this way, only comes half, hardly half of my foot, that just slipped back down this way and that knee hit that concrete edge right square there, just bursted."

He further testified that his mind was occupied with thinking about a settlement of a lawsuit he had just effected and, in his own words, "I was simply going along there, naturally studying about something else and I never gave a thought to it at that particular time until I fell, when I...