City of Richmond v. Hill

• Decision Date: 23 June 1922
• Citation: 242 S.W. 867,195 Ky. 566
• Parties: CITY OF RICHMOND v. HILL.
• Court: Kentucky Court of Appeals

242 S.W. 867

195 Ky. 566

CITY OF RICHMOND v. HILL.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Madison County.

Action by Mary F. Hill against the City of Richmond to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Chenault & Chenault, of Richmond, for appellant.

A. R Burnam, Jr., of Richmond, for appellee.

MOORMAN J.

Mary F Hill recovered a judgment of $4,035 against the city of Richmond for personal injuries sustained while attempting to pass over a board crossing on Main street in that city. The crossing was maintained by the city to span the gutter on the north side of the street. It was a part of the street, and was habitually used by a great many pedestrians. The plaintiff, carrying an infant in her arms, started over the crossing with her husband, who stepped on one of the planks causing it to fly up and trip the plaintiff, throwing her to the ground and breaking her left arm at the elbow. The arm remained in a plaster cast for several weeks. It was shown at the trial that she had suffered great pain, and would continue to suffer for some time on account of the injury. She is unable to straighten the arm, which is atrophied and has little, if any, rotary motion at the elbow. The medical testimony indicates that it will probably never be more than 50 per cent. as efficient as before the injury.

A reversal of the judgment is sought on several grounds, the first of which is that the court should have directed the jury to return a verdict for the defendant at the conclusion of the plaintiff's evidence. One of the arguments made in support of this contention is that there was no proof of the specific negligence charged in the petition, and, consequently, there was no justifiable reason for submitting the case to the jury.

The averments of the petition as to negligence are the failure to keep the crossing in repair, in that the boards and timbers thereon were allowed to become loose, broken, rotten, and defective, and to remain in such dangerous condition for a long period of time, and the permitting of the boards and timbers to be and remain in such condition that they could be thrown out of place, made dangerous and unsafe, and thus cause a person walking on them to trip and fall. It is contended that there is no evidence that the boards were broken, rotten, or defective, and, assuming that it was proved that one of them was caused to fly up and trip the plaintiff, there were no allegations in the petition on which to rest such proof, and therefore there could be no recovery for an injury sustained in that manner. This argument is based on the rule that where specific acts of negligence are charged one cannot recover for other and different acts not specified or relied on. The weakness of counsel's position in this respect is that plaintiff charged that the city was negligent in failing to fasten the boards or to maintain them in such condition that by walking across them they would not become misplaced and cause the pedestrian to fall, and the proof shows that the failure to fasten them so as to prevent them from becoming misplaced and tripping the pedestrian was the very thing that brought about the injury. It is to be readily seen, therefore, that the proven acts of omission causing the injury conform to the negligence alleged.

Another reason assigned for the peremptory instruction is that the proof fails to show that the condition of the crossing was known to the city or to G. H. Allman, the street commissioner of the city, and it is insisted that notice of the defective condition cannot be imputed to the city. Bell v. City of Henderson, 74 S.W. 206, 24 Ky. Law Rep. 2434, is cited as sustaining the contention. An examination of that case shows that there was an absence of actual notice of the defect in the platform which occasioned the injury, and it was held that, on account of the obscure nature of the defect and the short time it had been in existence, the city was not chargeable with lack of diligence in failing to discover it in time to have prevented the accident. The rule with respect to liability for injuries caused by defective streets is correctly stated in that opinion. It is that, where the injuries are caused by a defective street, in the absence of actual notice of such defect, or unless the defect has existed so long that notice or knowledge of it can be imputed to the city, there is no liability. It is undoubtedly true as contended by appellant, that a city is not an insurer of the safety of...