De Garmo v. Vogt

• Decision Date: 31 January 1913
• Citation: 152 S.W. 969,151 Ky. 847
• Parties: DE GARMO v. VOGT et al. d
• Court: Kentucky Court of Appeals

152 S.W. 969

151 Ky. 847

DE GARMO v. VOGT et al. d

Court of Appeals of Kentucky.

January 31, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Ellen De Garmo against Lulie Vogt and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Jacob Solinger, of Louisville, for appellant.

Leon P Lewis, and Clayton B. Blakey, both of Louisville, for appellee City of Louisville.

Trabue Doolan & Cox and Robt. T. Caldwell, all of Louisville, for appellee Vogt.

TURNER J.

Appellant instituted this action against the city of Louisville and Lulie Vogt, alleging that on the night of October 1, 1910, about 8 o'clock, she received personal injuries by reason of an unreasonable and dangerous obstruction placed on the sidewalk on Gray street by defendant Vogt, and that the same remained on said street in such dangerous condition for some time and made the street dangerous and unsafe for travel, which condition was known to both the defendants, or could have been by the exercise of ordinary care. The defendants each answered traversing all the allegations of the petition, and in addition pleading contributory negligence.

Upon the trial the evidence disclosed that the appellee Vogt was the owner of an apartment house at the corner of Second and Gray streets and a vacant lot on Gray street adjoining the apartment house; at some time previous to the 1st of October, 1910, she had applied to and received from the city a permit to make certain repairs or improvements on the apartment house, and had been issued a permit by the city to use certain parts of the street or sidewalk for depositing material during the progress of the work; that on the morning of the 1st of October there was delivered to her a load of gravel which was dumped on the curbing at the edge of the sidewalk in front of the vacant lot to be used in such repairs; that during the day the workmen on the building used some considerable portion of this gravel in their work, and, when they quit work at night, left the balance there. Up to this point the evidence is practically uncontroverted, but the evidence as to the manner in which the pile of gravel was left that night, and as to whether or not there was a light of any kind on it, is very conflicting.

Appellant and two or more of her witnesses stated that between 8 and 11 o'clock that night the gravel practically obstructed the whole sidewalk at that point, and that there was no light or warning of any description, and that the arc light at the corner of Second and Gray streets cast no light on the gravel pile because of the obstruction by the trees and their branches which intervened. The evidence for the defendants shows that, when the workmen quit work at about 6 o'clock, they brushed the gravel all back and ricked it up at the edge of the sidewalk on a narrow grass plot there, and got some planks and put at the sides to prevent it from spreading, and that they left it in such condition that there was practically no obstruction of the sidewalk at all, which was at that point 12 feet wide; that a red light was placed on the sand pile, and some witnesses state that the same was there at 11 o'clock that night and the next morning; that the arc light at the corner shone directly on the gravel pile; and that the trees were so trimmed as not to obstruct it. In addition to this, appellant produces a photograph of the gravel pile taken on the Monday afternoon following, about 2:30 o'clock, which shows that at that time the gravel pile obstructed almost the entire sidewalk; but it is claimed by appellees it was not in the same condition it had been on Saturday night, because the day the photograph was taken the workmen had been shoveling into the pile and thereby scattered it, and that the school children in the neighborhood had been running over and through it, so as to further scatter it. The evidence was so conflicting as that a verdict for either party would not be disturbed as flagrantly against the evidence. The jury found for each of the defendants and the plaintiff has appealed.

The first point urged by appellant for reversal is that it was error for the court to instruct the injury that appellee Lulie Vogt "had a right to make such use as was reasonably necessary of the street or sidewalk for the purposes of placing material for such improvements of her property" ; that such instruction was confusing and misleading and might readily have been understood by the jury to mean that she had a right, under the city ordinance and permit, to place a dangerous...