Elam v. City of Mt. Sterling

• Decision Date: 10 March 1909
• Citation: 117 S.W. 250
• Parties: ELAM v. CITY OF MT. STERLING.
• Court: Kentucky Court of Appeals

117 S.W. 250

ELAM v. CITY OF MT. STERLING.

Court of Appeals of Kentucky.

March 10, 1909

Appeal from Circuit Court, Montgomery County.

"To be officially reported."

Action by J. C. Elam against the City of Mt. Sterling. From a judgment for defendant, plaintiff appeals. Affirmed.

Prewitt & Senff, for appellant.

W. C Hamilton and W. B. White, for appellee.

CARROLL J.

The appellant in his petition to recover damages for personal injuries received alleged that the city of Mt. Sterling, by its officers and agents, negligently and carelessly placed and permitted to remain on Richmond street, in said city, two large piles of crossing stones directly opposite each other on each side of the street, so close to the route of travel as to frighten horses passing same, thereby rendering the street dangerous and unsafe for travel, which fact was known to the officers of the city, or could have been known by them by the exercise of ordinary diligence on their part; that while driving a gentle horse attached to a buggy along the street in the ordinary and usual mode of travel, his horse became frightened at the stones and ran away, causing his buggy to collide with another vehicle, which collision resulted in appellant being thrown violently to the ground thereby injuring him severely. A demurrer to the petition being overruled, an answer was filed traversing the averments of the petition and pleading contributory negligence. Upon the conclusion of the evidence for the plaintiff the trial judge directed the jury to return a verdict for the city; so that the question we are called upon to determine is whether or not this ruling of the trial judge was erroneous.

The testimony established, in substance, that the city, desiring to make a foot crossing out of stone across the street, employed a contractor to do the work, and this contractor on Saturday, the 22d of February, hauled crossing stones to the point where the crossing was to be laid, and placed them in the street close to the curbing of the sidewalk and parallel with it. The stones, four in number, were six feet long, four feet wide, and four inches thick; two being placed on each side of the street, one on top of the other. They were not on the traveled or macadamized part of the street, and the space in the street for vehicle travel between the stones was some 15 feet. It was the intention of the contractor to lay the stone walk on the Monday following, but rain and other pressing engagements delayed him in the work, and it was not commenced until Wednesday, the 26th, the day appellant was thrown from his buggy. There was some conflict in the testimony as to the gentleness of the horse, but the weight of the evidence was to the effect that he was ordinarily gentle. The appellant offered to prove by several witnesses that stones, placed on the street as these were, were reasonably calculated to frighten horses of ordinary gentleness; but objection to this character of evidence was made and sustained. He also offered to prove by other witnesses that gentle horses driven by them were frightened by these stones before the accident to appellant occurred, and one witness was permitted to say that his horse did scare at them, and that they were reasonably calculated to frighten horses of ordinary gentleness.

It is the contention of the appellee that the offered evidence that the stones were reasonably calculated to frighten horses of ordinary gentleness was properly excluded, because there was no averment in the petition to this effect. It is further insisted that, in omitting to state this fact, the plaintiff failed to set out a cause of action, and a demurrer to the petition should have been sustained. As the cause of action was necessarily grounded upon the proposition that the stones were calculated to frighten horses of ordinary gentleness, it seems to us the petition should have contained this or a like averment. Placing the stones in the street was not in and of itself an act of negligence. The negligence, if any, consisted in the fact that the stones were calculated to frighten horses of ordinary gentleness. If they were not calculated to do this, it was not negligence to place them in the street, and travelers would have no cause of action against the city on account of their presence. As a general rule, a person cannot recover for injuries inflicted by the fright of his horse unless he proves that his horse was ordinarily gentle; and hence it would seem to follow that there should be an allegation of this fact. The stones might have frightened horses, but this fact of itself would not warrant a recovery against the city unless the horse so frightened was ordinarily gentle, and the stones calculated to frighten such a horse. Elliott on Roads and Streets, § 616; 28 Cyc. 1380; Town of Royal Center v. Bingaman, 37 Ind.App. 626, 77 N.E. 811; Town of Rushville v. Adams, 107 Ind. 476, 8 N.E. 292, 57 Am.Rep. 124; Ayer v. Norwich, 39 Conn. 376, 12 Am.Rep. 396; Board of Councilmen v. Fain, 99 S.W. 275, 30 Ky. Law Rep. 564.

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