Clay City v. Abner

• Decision Date: 30 September 1904
• Citation: 82 S.W. 276
• Parties: CLAY CITY v. ABNER.
• Court: Kentucky Court of Appeals

82 S.W. 276

CLAY CITY v. ABNER.

Court of Appeals of Kentucky.

September 30, 1904

Appeal from Circuit Court, Powell County.

"Not to be officially reported."

Action by Nelson Abner against Clay City. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Hazelrigg Chenault & Hazelrigg and John D. Atkinson, for appellant.

W. D Jackson and C. F. Spencer, for appellee.

O'REAR J.

Clay City belongs to the fifth class. By section 3643, Ky. St 1903, it is authorized and empowered to order any work its council may deem necessary to be done upon the sidewalks, streets, and public places of the city. Some years ago promoters who planned the town had recorded a plat upon which was designated numerous streets and alleys, with lots abutting thereon. When the town came to be incorporated, and its government organized, it does not seem to have accepted all the streets so dedicated, nor to have undertaken the onerous task of grading or paving them all. Fourth avenue and Third street, sometimes called by other names in the record, crossed at about right angles. Fourth avenue had been accepted and improved by the city. The uncontradicted evidence of the city is that it had not accepted or improved Third street. At the intersection of the two streets a bridge had been built and maintained for several years to accommodate travel along Fourth avenue. Appellee, on a dark night, in going to his home, which necessitated his crossing this bridge, approached it from what would have been Third street. He fell into a ditch which had not been filled up in Third street by the side of this bridge. He sued the city, and recovered a verdict for his injuries.

In submitting the case to the jury the instructions assumed that Third street, where plaintiff was traveling at the time of the injury, had been dedicated to and accepted by the city and that it was under the duty to keep same in a reasonably safe and fit condition for travel by the public. This was error. Under the state of the record before us plaintiff did not show himself entitled to recover for any injury while attempting to travel upon what would have been Third street. The court also told the jury that, if the bridge at the connection of Third street and Fourth avenue was constructed in such way or in such condition as not to be in a reasonably safe state for pedestrians passing from Third street to Fourth avenue when using due care and prudence,...