City of Pineville v. Lawson

• Citation: 9 S.W.2d 517,225 Ky. 542
• Parties: CITY OF PINEVILLE v. LAWSON.
• Decision Date: 08 June 1928
• Court: Court of Appeals of Kentucky

9 S.W.2d 517

225 Ky. 542

CITY OF PINEVILLE v. LAWSON.

Court of Appeals of Kentucky

June 8, 1928

As Modified on Denial of Rehearing, Oct. 19, 1928.

Appeal from Circuit Court, Bell County.

Action by Carlo Lawson, by next friend, against the City of Pineville. Judgment for plaintiff, and defendant appeals. Affirmed.

Davis &amp Harrison, of Pineville, for appellant.

J. S Golden and B. B. Golden, both of Pineville, for appellee.

DRURY C.

Carlo Lawson, whom we shall call the plaintiff, suing by his next friend, recovered a judgment against the city of Pineville which we shall refer to as the city, for $25,000, to reverse which the city has prosecuted this appeal. Some time about the year 1909, certain promoters subdivided a tract of land within the city of Pineville, which has since been known by the name of Newtown or East Pineville. The only means of reaching this subdivision from the main part of the city of Pineville was by a bridge over the Cumberland river and a bridge over Straight creek. We do not mean that either of these bridges could be used, but it was necessary to use them both. Carlo Lawson lived to the right of Straight creek as one goes down the stream, and this subdivision, known as Newtown, was to the left of that creek. At the time this subdivision was made, the promoters of it, in order to make their subdivision salable, built a wooden bridge across Straight creek. That bridge was used until about 1918, when it was washed away and destroyed by a flood that came down the creek. After its destruction, Bell county erected a steel bridge at that place, but shortly thereafter a dispute arose between Bell county and the city relative to the upkeep of this bridge, the net result of which was that no one kept it up, and the plaintiff appears to be the innocent victim of this neglect. The bridge got into bad repair; that is, the flooring wore out, and numerous holes in it resulted, and the city authorities knew of them. One of these holes was large enough that a calf fell through it.

One night in October, 1922, the plaintiff, who was then about eleven years old, was crossing this bridge returning to his home from a tent meeting that was in progress in Newtown. He fell in one of these holes, so he says, and scraped his right shin. A blood stream infection known as blood poisoning followed, and it is claimed that it resulted from this fall. This boy has since been a great sufferer, and for over four years he was confined to his bed. Both legs became involved. Dr. Owen, of Louisville, under whose care the boy was from April to November, 1926, in describing his condition when he first saw him, said:

"He had discharging sinuses from both knees, thighs, and shin bones. X-ray pictures, several of them having been taken, show definite evidence of chronic osteomyelitis involving both thigh bones; the knee joints having been destroyed by disease. Both tibia or shin bones were also intensely involved. Both knees were absolutely fused or stiff, the joint surface having been destroyed entirely, the bones thoroughly grown together, both feet were extended, his heels drawn up, ankles were straightened by an operation. His sinuses and an infection was treated locally and constitutionally. At the time of his discharge, he was wearing braces on both legs, he was able to stand with the assistance of braces and crutches and could walk poorly. His general constitutional condition was greatly improved, he gained considerable weight, his local infections were greatly improved, but not cured, when discharged."

When asked about the possibility of further improvement in this boy's condition, Dr. Owen said:

"The maximum to which it would be possible for him to recover would be to be able to walk with two stiff knees, because his knee joints have both been absolutely destroyed by disease. * * * I say, that would be the maximum; it might come to pass. However, I am not expecting that. It is questionable whether he will recover at all, because he still has a lot of infection in both of his legs."

We shall state the grounds relied on for reversal as we reach them in our discussion of them. The continuance which was refused and is relied on as the first ground for reversal was asked because of the absence of Dr. C. C. Durham, the physician who attended this boy in the first weeks of his illness, but no steps had been taken to procure the evidence of the doctor by deposition, as is provided by section 554 of the Code, nor had any steps been taken to secure his personal attendance, as is provided by section 556; hence the court did not err in refusing a continuance or in refusing to allow the city to read to the jury from the affidavit filed on its behalf that part setting out what the doctor's evidence would be. See Holzhauer v. Sheeny, 127 Ky. 28, 104 S.W. 1034, 31 Ky. Law Rep. 1241; Thurmond v. Virgin, 57 Ky. (18 B. Mon.) 785. Section 315 of the Civil Code does not apply to witnesses whose appearance cannot be coerced.

The second ground for reversal presents the question of the city's duty to keep up repairs on this bridge. Pineville is a city of the fourth class, and, by our statutes, sections 3560, 3561, and 3562, had exclusive control of this bridge. There was some evidence introduced showing the city had made some repairs on the floor of this bridge, but, after that was done, this stipulation was made:

"It is agreed by the parties that the city council did not do any work on the bridge or make any repairs because it believed and claimed that it was not its duty, but the duty of Bell county, to keep the bridge in repair."

We must determine what was the effect of this stipulation, for, as we have stated, there had been some evidence offered that the city had made repairs on this bridge. Of course, the city would attempt to disprove that, but, when these parties made this stipulation, they agreed the city council did not do any work on the bridge. They did not say that the bridge was not in the city, or the city and its citizens did not use the bridge, and that for that reason it refused to do work on the bridge, but stipulated that it did not work on the bridge because it did not consider such to be its duty. The effect of that was to withdraw the evidence that had been introduced showing the city council had done work on this bridge, and thus we have this bridge existing across this creek, within the city, erected by the county, used by the city and its citizens, and maintained by no one. Its streets came to each end of it; indeed, they led across it, it was a part of its streets; and a city is liable for known dangers existing in its public streets and for defects in sidewalks laid therein, even though it may not have laid them or required them to be laid.

In the City of Madisonville v. Pemberton's Adm'rs, 75 S.W. 229, 25 Ky. Law Rep. 347, we held the city liable for a defect in a sidewalk that had been built by the property owner without any requirement of the city that he do so. In Louisville v. Brewer's Adm'r, 72 S.W. 9, 24 Ky. Law Rep. 1671, Rawling Street had been a country road before being taken into the city. A cinder path had been made along the edge of the road, and a number of posts had been erected along it to protect the path from trespassing wagons and other vehicles. It seems about all the city had done after taking in the neighborhood was to assess the property for municipal taxation; yet the city was held liable for an injury sustained on account of one of these posts. In City of Ashland v. Cummings, 194 Ky. 645, 240 S.W. 63, we affirmed a judgment that held the city liable for injuries resulting from the defective condition of a sidewalk built before the property was taken into the city.

In Town of Bromley v. Bodkin, 77 S.W. 696, 25 Ky. Law Rep 1245, the town was held liable for injury resulting from a defective sidewalk which had been built by the property owner sua sponte, and the only proof of work done upon the street was that the city had filled some holes in it, and had plowed some gutters along each edge of it. The city is not relieved of responsibility by having an ordinance requiring the abutting owner to keep sidewalks in repair, and in the case of Webster v. C. & O. R. Co., 105 S.W. 945, 32 Ky. Law Rep. 404, we held that the obligation of the municipality to keep its streets in reasonably safe condition for public travel is unconditional, and this duty it cannot shift to an abutting owner. To hold otherwise would cause it to relax its care, and a divided responsibility would result in detriment to the public service. We cited and approved that doctrine in the case of Louisville v. Bott's Adm'x, 151 Ky. 578, 152 S.W. 529, and held the city was responsible for failure to keep the street in repair, although it had a contract requiring the Monon R. Co. to make such repairs. The liability of a city for unsafe conditions of its streets extends to cases where this unsafety is brought about by persons other than the agents of the city and the city has knowledge of such unsafe condition, or might have knowledge thereof by reasonable watchfulness. See City of Louisville v. Keher, 117 Ky. 841, 79 S.W. 270, 25 Ky. Law Rep. 2003; Eagan v. Covington, 166 Ky. 825, 179 S.W. 1026; City of Mayfield v. Hughley, 135 Ky. 532, 122 S.W. 838; City of Bowling Green v. Bowling Green Gas Light Co. (Ky.) 112 S.W. 917; City of Newport v. Miller, 93 Ky. 22, 18 S.W. 835, 13 Ky. Law Rep. 889; City of Louisville v. Frank, 154 Ky. 254, 157 S.W. 24. The negligence for which the municipality is chargeable is not for the creation of the defect but for permitting the defect to remain unguarded after it knew, or by proper watchfulness should have known, of the defect. The city is not excused by the fact that the one creating the...