Hazel v. City of Owensboro

• Decision Date: 30 January 1907
• Citation: 99 S.W. 315
• Parties: HAZEL v. CITY OF OWENSBORO.
• Court: Kentucky Court of Appeals

99 S.W. 315

HAZEL v. CITY OF OWENSBORO.

Court of Appeals of Kentucky.

January 30, 1907

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Action by Maggie Hazel against the city of Owensboro. From a judgment for defendant, plaintiff appeals. Affirmed.

Wilfred Carico and LaVega Clements, for appellant.

George W. Jolly, for appellee.

CARROLL C.

The appellant in her petition against the city of Owensboro, to which a demurrer was sustained, alleged that she was the owner of a building located within the city; that in April 1906, without fault on her part, and from some cause unknown to her, the building was destroyed by fire; that the city had an efficient waterworks system, well supplied with fire hydrants established at convenient points for the extinguishment of fires, one of which located immediately across the street from the building that was destroyed being in good condition, abundantly supplied with water sufficient to have extinguished the fire without serious damage to the property. She further averred that the city had an efficient fire department, supplied with all modern appliances for the extinguishment of fires; that she discovered the fire almost immediately after it started, and gave the fire alarm to which the department responded, and would have arrived at the fire in time to extinguish it before serious damage was done except for the fact that the city had negligently permitted the only street over which the fire department could reach her property to become impassable for wagons or other vehicles, and had carelessly and knowingly permitted it to remain in this condition for some months previous to the fire, and that the hose wagon and engine were mired in the street whilst on their way to the fire, thereby being delayed a considerable length of time, during which the fire obtained such headway that, when the department reached it, it was beyond control. She sought to recover from the city the value of the property destroyed upon the ground that the loss was the result of the negligence of the city in failing to keep its streets in reasonably safe condition for public travel.

Counsel for the city insists that the action cannot be maintained for two reasons: (1) Because a municipality in the maintenance of a fire department does so in the performance of a public service and is not liable for negligence in the performance or nonperformance of the duties required of it; (2) because the negligence of the city in failing to keep the street in repair was not the natural or proximate cause of the injury complained of.

There is no complaint that the fire department of the city was in any respect negligent, nor that the loss...