Ernst v. City of West Covington

• Decision Date: 19 November 1903
• Citation: 76 S.W. 1089,116 Ky. 85
• Parties: ERNST v. CITY OF WEST COVINGTON.
• Court: Kentucky Court of Appeals

76 S.W. 1089

116 Ky. 85

ERNST v. CITY OF WEST COVINGTON.

Court of Appeals of Kentucky.

November 19, 1903

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Rosamond Ernst against the city of West Covington. From a judgment for defendant, plaintiff appeals. Affirmed.

J. T Hanger and W. McD'Shaw, for appellant.

Hall &amp McLean, for appellee.

PAYNTER J.

West Covington is a city of the fifth class, with the power to acquire and hold real estate. It owned a two-story building situated within its corporate limits. The plaintiff's cause of action may be best stated by quoting from the petition as follows: "That said defendant permits said building to be used as a public school, which is attended by many children, residents of said city; said building is situated on said described ground fronting on Main street and is about five or six feet back from the eastern boundary of said lot; that said above-described realty is about four or five feet above the grade of Main street and the sidewalk abutting said property; that the defendant had, long previous to the times herein mentioned, erected and constructed a stone wall on the eastern line of said property and adjoining the said sidewalk; that said wall was and is about four or five feet high, and the top of said stone wall was and is on a level with the said above-described property; the space between the building and said stone wall is paved with brick and the school children all used this space as a passage to the back yard and a playground, which defendant and its officers and servants well knew, or ought to have known; that the said eastern boundary of said property was and had been for many months and for a long time in a dangerous condition in not having a fence or railing or some barrier along said eastern boundary, as defendant well knew, and that it was the duty of said defendant to place along the eastern boundary of said property a fence or railing or barrier to prevent children or persons from falling or being thrown over and upon the sidewalk below, and to thus protect children and persons using or passing over said property; that said defendant, its officers and agents, did willfully negligently, and carelessly fail to construct and erect any fence or railing or barrier on the top of said stone wall, or on any portion of the eastern line of said property, to prevent children or others from falling over same and upon the sidewalk beneath, and said defendant, its officers and agents, did willfully, negligently, and carelessly permit said stone wall and the eastern part of said realty to remain for many months and years without any fence or railing or barriers which would prevent children and others from falling over same and upon the sidewalk below, and said defendant, its officers and agents and servants, well knew, or ought to have known, of the dangerous condition of the said eastern boundary of said property, and knew, or ought to have known, that no fence or railing or barrier was there at the time of the injuries herein complained of or had ever been there; that on or about the 4th day of October, 1901, plaintiff, Rosamond Ernst, was attending school at said building, as were numerous other children, and was rightfully on said property, and standing between said building and said stone wall, and nearer the wall than the building; that while so standing, and without fault on her part or on the part of her parents, she was run upon and against and...