Hippodrome Amusement Co. v. Carius

• Decision Date: 25 May 1917
• Citation: 175 Ky. 783,195 S.W. 113
• Parties: HIPPODROME AMUSEMENT CO. v. CARIUS.
• Court: Kentucky Court of Appeals

195 S.W. 113

175 Ky. 783

HIPPODROME AMUSEMENT CO. v. CARIUS.

Court of Appeals of Kentucky.

May 25, 1917

Appeal from Circuit Court, Campbell County.

Suit by Catherine Carius against the Hippodrome Amusement Company and the City of Newport. Judgment for plaintiff, and the Amusement Company appeals. Affirmed.

Healy &amp Hawkins, of Newport, for appellant.

Barbour & Bassmann, of Newport, for appellee.

HURT J.

The appellee, Catherine Carius, brought this action in the Campbell circuit court against the appellant, the Hippodrome Amusement Company, and the City of Newport, and alleged for her cause of action that on the 9th day of August, and for several months immediately prior thereto, the appellant and the city of Newport maintained a water service box, in the sidewalk of Monmouth street, about 9 inches from the curb line and immediately fronting the property of the appellant that this water service box consisted of an iron pipe, about 3 feet long and 4 1/2 inches in diameter, and with an opening about 3 1/2 inches in diameter, and was placed underneath the sidewalk in such a way that the top of the water service box was even with the upper surface of the sidewalk, and when in proper repair was covered with an iron lid, and was used for turning on and turning off water from a water pipe line which led from a water main in the street to a drinking fountain, which had been erected and maintained by the appellant and the city in the sidewalk in front of the premises owned by the appellant; that the drinking fountain was from 1 to 2 feet from the water service box mentioned and that this box was used for no purpose, except to supply the fountain with water from the city's water mains; that the appellant and the city failed to maintain the sidewalk in front of the appellant's property in a reasonably safe condition for public travel in that the lid had been negligently allowed to be removed from the water box, and so continued for several months, or else a lid had never been put on it, and that the appellant and the city knew, or by the exercise of reasonable care could have known, of the defective condition of the sidewalk at that point, on account of the opening into the water box being exposed, and that appellee, while assisting in giving a drink of water to a child at the fountain, and while exercising ordinary care for herself, in turning to walk away, stepped into the opening into the water box, which caused her to fall with considerable violence, dislocated her heel, tore away the ligaments which attached to the various bones of the heel, and resulted in her confinement and suffering for some weeks, and permanently injured her for life.

The city and appellant filed separate answers, and the appellant in its answer denied that it maintained the water service box, and claimed that it was in no wise obligated to repair or keep in condition the water service box, and that same was the duty of the city alone. The trial resulted in a verdict by the jury against the city for damages in the sum of $130, and against appellant in the sum of $900. The appellant's motion for a new trial being overruled, it has appealed.

The grounds upon which it seeks a reversal are the alleged error of the court in overruling its motion for a directed verdict in its favor, made both at the close of the evidence for the appellee and at the close of all the evidence; and the further contention that the verdict against it is excessive and was induced by passion and prejudice on the part of the jury. It furthermore contends that the court erred to its substantial prejudice in giving instruction No. 5, which substantially directed the jury that, if the appellant, by permit or license, granted to it by the city, erected the water fountain, and that the water box was connected with the fountain, it was the duty of the appellant to exercise ordinary care to keep the water box in a condition that it would not be a dangerous obstruction to the public travel along the sidewalk, and that if the jury believed from the evidence that the box was open and uncovered, and that the sidewalk by reason of such fact was not in a reasonably safe condition for use by pedestrians, who were exercising ordinary care for their own safety, and was in a dangerous condition by reason of the existence of the opening in the sidewalk, which resulted from the water box being uncovered, and that plaintiff, while exercising ordinary care for her own safety, stepped into the opening, and was thereby caused to fall and receive the injuries of which she complained, to find in her favor against the appellant, unless the jury should believe that at the time she caught her foot and she fell, she was guilty of such contributory negligence, as but for which she would not have suffered the injuries.

The evidence shows without any contradiction that the water service box is only used for the purpose of supplying water to the fountain, and without it there would be no reason or necessity for the box at the place where it is, and in reality it is a part of the necessary equipment of the fountain. The proof also shows that the appellant requested the city council to permit it to install the water fountain upon the sidewalk in front of its building, and that the council gave the permission, upon the condition that the appellant would install the fountain and maintain it thereafter, without any cost to the city, and under this permission the appellant did install the fountain. The proof does not disclose that a lid was ever put over the water box that it was installed there about the middle of April and the accident to appellee occurred in the first days of the month of August; and several witnesses testify that for two or three months previous to the accident to appellee, the water service box was uncovered, and there is no witness who states that a lid was put upon it when it was originally installed or that there had ever been one on it. It was immediately in front of the building of the appellant and under the observation of its manager, servants, and agents at all times, and it seems that with the use of ordinary care the time was amply sufficient to discover the defect which it caused in the sidewalk by reason of there being no lid upon the water box, if...