Gee's Adm'r v. City of Hopkinsville

• Citation: 154 Ky. 263,157 S.W. 30
• Parties: GEE'S ADM'R v. CITY OF HOPKINSVILLE.
• Decision Date: 05 June 1913
• Court: Court of Appeals of Kentucky

157 S.W. 30

154 Ky. 263

GEE'S ADM'R v. CITY OF HOPKINSVILLE.

Court of Appeals of Kentucky.

June 5, 1913

Appeal from Circuit Court, Christian County.

Action by James Gee's Administrator against the City of Hopkinsville. From a judgment on a directed verdict for defendant, plaintiff appeals. Affirmed.

Douglas Bell, John C. Duffy, J. E. Byars, and Trimble & Bell, all of Hopkinsville, for appellant.

Thomas P. Cook, of Hopkinsville, for appellee.

CARROLL J.

There runs through the city of Hopkinsville a stream of water called the West fork of Little river that during heavy rainfalls becomes a swift, high, and dangerous current although in ordinary conditions it is passable on foot. Several of the streets of the city, including Second street cross this river. On two of these streets the city has built bridges, and, many years ago it macadamized Second street on each side of the river to the center of it, thereby making it, when the river was low, a safe highway for vehicles as well as pedestrians. In March, 1910, James Gee, who lived in Hopkinsville, went out into the country in his buggy early one morning, and returned to the city on the same night after dark. During the day there was a heavy rainfall that made the river dangerous to cross at Second street, and when Gee, who did not know of the heavy rainfall, or of the condition of the river, attempted, on his return, to cross it at Second street, he was caught in the current and drowned. Soon afterwards his administrator brought this suit against the city to recover damages for his death, charging that it was due to the negligence of the city in failing to have a bridge across the river at Second street, and in failing to have the street so lighted near the river as that travelers in the night might be able to discover, before getting into it whether it was passable or not. On the trial of the case after evidence for the plaintiff had been introduced showing that there was no bridge at Second street, and that the street lights did not furnish sufficient light to disclose the condition the river was in, and when the case for the plaintiff had been closed, the court directed the jury to return a verdict for the defendant, and the plaintiff appeals.

Leaving out of view for the moment the question of lights, we may say at the outset that three propositions relating to the duty of municipal corporations in reference to streets are well settled. One is that a city is under a duty to exercise ordinary care to keep its streets in reasonably safe condition for public travel. Another is that this duty does not arise except as to streets that the city has undertaken to improve; and yet another is that the manner or method adopted for the improvement of streets that the city undertakes to improve is left to the discretion of the governing authorities of the city. To state these propositions differently, the city may leave its streets, or any of them, in the condition in which they were when first established and set apart for public use, although they may have then been entirely unimproved; but, if it undertakes to improve them, it must exercise ordinary care to put and keep them in reasonably safe condition for public travel, having, however, a discretion as to the character and quality of the repairs or improvements that it will make, subject to the limitation that, when completed, the streets will be reasonably safe for public travel. Clay City v. Roberts, 124 Ky. 594, 99 S.W. 651, 30 Ky. Law Rep. 820; Moore v. City Council of Harrodsburg, 105 S.W. 926, 32 Ky. Law Rep. 384; Harney v. City of Lexington, 130 Ky. 251, 113 S.W. 115; Arnold v. City of Stanford, 113 Ky. 852, 69 S.W. 726, 24 Ky. Law Rep. 626; Campbell v. City of Vanceburg, 101 S.W. 343, 30 Ky. Law Rep. 1340; City of Maysville v. Brooks, 145 Ky. 526, 140 S.W. 665.

Applying with some little elaboration, these principles to the case we have, we think it clear that the city was under no legal duty to construct a bridge across this river at Second street, and therefore its failure to do so could not be made the basis of an action for negligence. Dillon on Municipal...