Eagan v. City of Covington

• Decision Date: 19 November 1915
• Citation: 179 S.W. 1026,166 Ky. 825
• Parties: EAGAN v. CITY OF COVINGTON.
• Court: Kentucky Court of Appeals

179 S.W. 1026

166 Ky. 825

EAGAN v. CITY OF COVINGTON.

Court of Appeals of Kentucky.

November 19, 1915

Appeal from Circuit Court, Kenton County, Common-Law and Equity Division.

Action by Josephine Eagan against the City of Covington. From judgment for defendant, plaintiff appeals. Affirmed.

B. F Graziani, of Covington, for appellant.

Fred W Schmitz and John A. Richmond, both of Covington, for appellee.

SETTLE J.

This is an appeal from a judgment of the Kenton circuit court, law and equity division, entered upon a verdict in favor of the appellee, city of Covington, returned by the jury in obedience to a peremptory instruction from the court. The action was brought by the appellant, Josephine Eagan, to recover of the appellee city damages for injuries sustained to her person resulting from a fall into a hole of water in a sidewalk, which, it was alleged, appellee had knowingly and negligently maintained or permitted to exist. The accident according to the evidence, occurred under the following circumstances: On March 26, 1913, about 5 o'clock p. m appellant left a street car, upon which she had been a passenger, near the intersection of Third street and Crescent avenue, for the purpose of going to her home, about half a square on and beyond Crescent avenue. Third street runs into and ends upon Crescent avenue. On its west side Crescent avenue is bounded by a hill or hills. Third street is the first one reached in entering the city at that point from the Ohio river, and runs parallel with the river. The street cars run along Third street, and upon reaching Crescent avenue turn northwardly. The regular stopping place of the cars is on Crescent avenue at its intersection with Third street, but, as at the time of the accident the Ohio river, owing to frequent heavy rains, was out of its banks, and the presence of a large body of back water from a sewer overflowed Crescent avenue at the point of its intersection with Third street, the car upon which appellant was a passenger had to turn northwardly and run several yards on Crescent avenue before stopping. When appellant left the car she could not, owing to the presence of the standing water on Crescent avenue, immediately cross to the west side thereof without wading through the water, nor could she cross Crescent avenue from Third street in a southerly direction, for the same reason. She was therefore compelled to walk along the north side of Third street eastwardly to a point where there was no water between the curbs, in order to cross from the north side of Third street to the sidewalk on the south side thereof, from which she could proceed in a westerly direction to Crescent avenue, where it was sufficiently elevated above the water to enable her to reach its west side and proceed to her home. Third street is paved with brick between the curbing; but the sidewalk on the north side thereof, upon which appellant had to travel, is not paved. After leaving the street car and walking eastwardly on the north sidewalk of Third street a distance of about 40 feet, appellant claimed to have stepped upon two boards which lay upon the sidewalk with one end of each resting upon the curbing. Upon stepping upon the boards they either broke or separated, and she fell between or from them into a hole of water of such depth that her person was completely submerged. She, however, rose with her head to the surface, and succeeded in catching hold of the curbing, to which she clung, until rescued by two young men who came out of a nearby saloon in time to witness the accident. After being taken out of the water appellant was carried to her home. It does not appear that any of her bones were broken, or that her body was materially bruised by the fall, but the wetting and shock she received greatly chilled her and caused her to contract a cold, which resulted in rheumatism, and confined her to her room or bed for about three weeks, by all of which she was caused very considerable physical and mental suffering.

The answer of the city is in two paragraphs, the first containing a traverse, and the second a plea of contributory negligence. A reply was filed controverting the plea of contributory negligence, and with the issues thus joined the case went to trial. The peremptory instruction directing the verdict for the appellee city was granted by the court at the conclusion of the appellant's evidence, and we are now called upon to say whether this action of the trial court was or was not error.

If there was any evidence introduced in behalf of appellant conducing to sustain the cause of action set out in her petition, the case should have gone to the jury; otherwise the nonsuit was properly directed. It is admittedly the duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon, and this duty extends to cases where the obstruction or unsafe condition of the street or sidewalk is brought about by persons other than the agents of the city; but in such case the party seeking to recover against the city for a failure to perform such duty must show that it had knowledge of the defect, or might have had knowledge thereof by the use of ordinary care. In other words, the city is not liable for injuries caused by such defects in its streets, in the absence of actual notice thereof, or unless they have existed so long that notice should be imputed to it. Bell v. City of Henderson, 74 S.W. 206, 24 Ky. Law Rep. 2434; Mayfield v. Hughley, 135 Ky. 532, 122 S.W. 838; Canfield v. City of Newport, 73 S.W. 788, 24 Ky. Law Rep. 2213.

Appellant introduced six witnesses besides herself. Her testimony only shows how the accident occurred, and that she had no information of the existence of the water hole until she fell therein. Mrs. Canfield testified as to the manner in which the accident occurred and to the effect that she knew nothing about the water hole, other than the fact that she had observed the boards lying across it about an hour before the accident. Mrs. Vandruff saw the accident, but knew nothing of the existence of the hole until the morning of the day the accident occurred, at which time it was not entirely filled with water and was covered by the boards. Clifford Johnson first saw the water hole about two days before the accident. According to his testimony, the hole had been made by a previous washout, but then contained little or no water. When first seen by him, there was space enough north of the hole to enable those traveling the sidewalk to pass it in safety. At that time there were boards lying on the sidewalk and curbing near the hole, but none across or upon it. He further testified, however, that on the day of the accident the sudden rise of the river or overflow of the sewer filled the hole with water, and he then observed for...