Farley v. Lexington Roller Mills Co.

• Decision Date: 03 June 1932
• Parties: FARLEY v. LEXINGTON ROLLER MILLS CO.
• Court: Kentucky Court of Appeals

54 S.W.2d 8

245 Ky. 723

FARLEY v. LEXINGTON ROLLER MILLS CO.

Court of Appeals of Kentucky

June 3, 1932

As Modified on Denial of Rehearing December 2, 1932.

Appeal from Circuit Court, Fayette County.

Action by A. S. Farley against the Lexington Roller Mills Company. From a judgment for defendant, plaintiff appeals.

Reversed and cause remanded.

Strother Kiser and James Park, both of Lexington, for appellant.

Wilson & Harbison and J. Keene Daingerfield, all of Lexington, for appellee.

PERRY J.

In this action by A. S. Farley against the Lexington Roller Mills Company to recover damages for personal injuries upon trial in the Fayette circuit court, a verdict and judgment thereon was given for the defendant. This appeal is prosecuted seeking a reversal of that judgment.

The facts as shown by the evidence are these:

On December 26, 1929, at or about 1 o'clock p. m., the appellant, A. S. Farley, hereinafter called the plaintiff was walking eastwardly along the sidewalk on the north side of Vine street in the city of Lexington. This sidewalk is adjacent to the property owned by the defendant company.

At three places in the sidewalk adjacent to its building appellee had constructed what are described in the record as "loading platforms." The west loading platform where the injury complained of occurred, was constructed by the defendant company, and is described by the evidence as being a concrete slope, 5' 5"' long on the west incline end, which slopes upward to a height of 7 3/4"' above the sidewalk to a platform, which is 7' long to its east side or end, which is only 6 1/2"' above the level of the sidewalk, whence it slopes downward from the east side line of the platform for a distance of 5' 11"' to the sidewalk level. Both the slopes and the platform are built of rough surfaced, corrugated cement, and take up the entire width of the sidewalk.

About noon of the day in question, the plaintiff, Farley, had gone up the western slope of said platform, crossed the top level portion thereof, and was starting down the eastern slope, when, just as he stepped upon the downward incline, his foot slipped, throwing him to the bottom of the slope upon the sidewalk. In his effort to break his fall, plaintiff threw his left hand behind him, and his left arm near the shoulder was broken, causing his confinement in the hospital and resulting in his alleged permanent injury.

Plaintiff alleges in his petition that this western loading platform was an elevated obstruction erected and constructed by the defendant for its sole use and benefit to facilitate its work of there loading and unloading trucks and that this elevated obstruction of said sidewalk makes it unsafe for pedestrians in walking on said sidewalk, and that, first, by reason of the negligence and carelessness of the defendant company in constructing and maintaining said platform on said sidewalk, it was made and allowed to become an obstruction, unsafe and dangerous to walk upon; and, second, that flour and other mill products of defendant had been spilled by the defendant, its agents and employees, upon said obstruction, inclines, and sidewalk, and by it allowed to remain there to become wet and freeze and thaw, causing the said inclines, platform, and sidewalk to become slippery and dangerous to this plaintiff and all other persons lawfully traveling upon the same, and that plaintiff's fall and resulting injuries were a direct and proximate result of defendant's negligence, first, in constructing and maintaining the sidewalk obstruction in such unsafe manner, and, second, in allowing it to become and remain in such unsafe condition.

Defendant's answers consisted of a general denial and a plea of contributory negligence.

According to the evidence of plaintiff and his witnesses, plaintiff had been using this sidewalk in passing to and fro from his place of business to his home for several years, and upon the occasion in question this loading platform adjacent to defendant's building, with its slopes to and from it, was covered with partly thawed snow and with a coating of chaff from wheat and other grain, coal dust, and dust from the mill, together forming a slick paste along this said portion of the sidewalk, which directly caused plaintiff's foot to slip thereon as he stepped from the platform onto the slope, and to fall with such violence as to cause him the injuries complained of.

The plaintiff's witnesses testified to their having fallen upon this same loading platform of the defendant when it was in like wet and slippery condition.

Defendant and its witnesses denied that the loading platform constructed by it was an unreasonable or dangerous obstruction of the sidewalk or that it or its agents had suffered the same to become littered with grain chaff or flour or other dust of its mill products, making it dangerous and unsafe as a passway for the public; also that the construction of defendant's elevated platform, where occurred plaintiff's accident complained of, was made pursuant to the city's permit given therefor and its supervision thereof.

At the conclusion of the evidence, the plaintiff asked the court to give, among other instructions offered by him, an instruction described as No. 4, and being as follows, that: "It was the duty of the defendant, its agents, servants and employees, at the time and on the occasion mentioned in the evidence to exercise the highest degree of care to construct and keep the surface of the platform erected by it on the street, including the inclined portions thereof, in a reasonably safe condition for the use of pedestrians traveling along the street, including the plaintiff, and if the jury believe from the evidence that the defendant failed to use the highest degree of care to construct and to keep the surface of the platform, including the inclined portions thereof, in such reasonably safe condition, and such failure on its part, if any there was, was the direct and proximate cause of plaintiff falling, and the plaintiff was thereby injured at the time and place referred to in the evidence, if he did fall and was thereby injured, then the jury should find for the plaintiff, but unless you do so believe, you will find for the defendant."

The court refused to give this or others of his offered instructions, as well as those offered by the defendant, but upon its own motion gave to the jury, among others, its instruction No. 1 as follows, that: "It was the duty of the defendant, Lexington Roller Mills Company, in using the sidewalk, a...