Fugate v. City of Somerset

• Decision Date: 07 March 1895
• Citation: 29 S.W. 970,97 Ky. 48
• Parties: FUGATE v. CITY OF SOMERSET.
• Court: Kentucky Court of Appeals

29 S.W. 970

97 Ky. 48

FUGATE v. CITY OF SOMERSET.

Court of Appeals of Kentucky.

March 7, 1895

Appeal from circuit court, Pulaski county.

"To be officially reported."

Action by B. M. Fugate against the city of Somerset to recover damages for personal injuries. From a judgment in favor of the defendant, plaintiff appeals. Reversed.

W. O Bradley and J. W. Colyer, for appellant.

O. H Waddle and W. A. Morrow, for appellee.

GRACE J.

This is an appeal from the judgment of the Pulaski circuit court dismissing plaintiff's petition for damages claimed against the city of Somerset. Plaintiff alleged in his petition that prior to August, 1889, the defendant, by its agents and officers, placed, or suffered and permitted others to place, large piles of lumber on one of its principal streets, whereby same was made and left in an unsafe and dangerous condition for public travel, and so suffered and permitted same to remain for a considerable length of time and that, while in this condition, plaintiff, on the third Sunday in August, was driving along said street in said town and his horse became alarmed and unmanageable, and ran away, and ran into and over said obstruction, throwing this plaintiff out of his buggy, and over and down an embankment where said timber was piled up, and greatly injured this plaintiff in his back and hip; and that all this was without fault or negligence on his part; that his horse and buggy were both injured at the same time, and from the same cause. Plaintiff further charges that this same street was unsafe by reason of the failure and negligence of the city in not providing and having erected a fence or other barrier or protection along and on the side and at the lap of this embankment, for the safety and protection of the public in traveling over same. Defendant, by its answer, denies substantially each allegation of plaintiff, and says that plaintiff's injuries were caused by and resulted from his own carelessness and negligence in not providing his harness and using a safe line, but that the line used was old and rotten, and insufficient to guide or restrain his horse, whereby he was injured. A jury being impaneled, plaintiff introduced himself and other witnesses, providing substantially the allegations of his petition that on and along this street where he was driving there was an embankment, some 50 or more yards long, and some 10 or 12 feet high; that this was unprotected in any way, and that on and along this street and in same several piles of lumber had been placed, some 2 1/2 feet high, 5 feet wide, the plank being some 12 feet long, same being placed end way to the street, and covering several feet...