Gatewood v. City of Frankfort

• Decision Date: 19 May 1916
• Parties: GATEWOOD v. CITY OF FRANKFORT.
• Court: Kentucky Court of Appeals

185 S.W. 847

170 Ky. 292

GATEWOOD v. CITY OF FRANKFORT.

Court of Appeals of Kentucky.

May 19, 1916

Appeal from Circuit Court, Franklin County.

Action by Richard Gatewood against the City of Frankfort. From a judgment for defendant, plaintiff appeals. Judgment reversed and cause remanded for new trial.

Leslie W. Morris, of Frankfort, for appellant.

F. M Dailey, of Frankfort, for appellee.

CLAY C.

While walking along St. Clair street on August 12, 1913, plaintiff Richard Gatewood, was injured by the fall of a wooden shed and brought this action against the board of councilmen of the city of Frankfort to recover damages. On the first trial there was a hung jury. On the second trial there was a verdict in favor of plaintiff for $2,125. A new trial was awarded, and on the third trial there was a peremptory instruction in favor of the defendant. Plaintiff appeals, and asks that the verdict of $2,125 be substituted for the verdict rendered in favor of the city on the last trial.

The record discloses the following facts: Before daybreak on August 12, 1913, a fire broke out in the old Yeoman Building. About 6 o'clock the fire was practically out and the fire department returned to its headquarters. The wooden shed which fell on plaintiff was attached to the wall of the Duvall Building and extended to the outer edge of the sidewalk. After the fire it was thought advisable to remove the three-story outer wall of the Yeoman Building. After every effort to remove the wall had failed, the Kentucky Traction & Terminal Company furnished a large motor truck, which pulled the wall down by means of a cable which was fastened to the joists of the wall. Some of the bricks fell on the wooden shed in question, and two or three witnesses thereafter noticed that one of the iron posts at the lower end of the shed protruded a few inches above the shed, and that the shed had been pulled away from the Duvall Building about six or eight inches. The wall was pulled down about 11 o'clock on the morning of the fire, at the instance and request of the mayor, the chief of the fire department, and the street commissioner, all of whom were present when the wall fell. A large portion of the brick fell upon the sidewalk and out into the street, thus forming a barricade at the south end of the shed. However, the sidewalk from Main street to the south end of the shed was unobstructed and unguarded by barriers. The accident to plaintiff occurred shortly after 3 o'clock p. m., on the same day. He was on a business errand into the city from his home in South Frankfort. He traveled on the side of the street on which the fire occurred until he reached a point near the damaged building. Owing to the accumulation of brick on the sidewalk, he stepped from the sidewalk out into the street, and walked along the street car track until he reached a point in front of the shed. At that point a passing street car and a wagon interfered with his progress. To avoid the car and wagon he stepped from the street proper onto the sidewalk under the shed. The shed broke loose from the wall and fell on him, causing the injuries of which he complains. Plaintiff was blind in one eye and the sight of his other eye was impaired. The evidence also tends to show that the city had not provided barriers or other means reasonably sufficient to warn pedestrians of the danger.

For the city it is insisted that the new trial was properly awarded and the peremptory instruction properly given on the next trial, because it was no part of the city's duty to look after the safety of the shed over the street. Without entering into a lengthy discussion of the question, it is sufficient to say that the doctrine is well established that the duty of a municipal corporation to use ordinary care to keep its streets in a reasonably safe condition requires it to take reasonable precautions against overhead structures as well as those under foot. Hence it is generally held that for an injury to a pedestrian, received by reason of a defective awning or shed projecting over and across a sidewalk, and...