Johnson v. Gulf Refining Co.

• Citation: 297 S.W.2d 755
• Parties: Mary Florience JOHNSON, Appellant, v. GULF REFINING COMPANY et al., Appellees.
• Decision Date: 28 September 1956
• Court: United States State Supreme Court (Kentucky)

Page 755

297 S.W.2d 755

Mary Florience JOHNSON, Appellant, v. GULF REFINING COMPANY et al., Appellees.

Court of Appeals of Kentucky.

Sept. 28, 1956.

Rehearing Denied Feb. 8, 1957.

Theodore Wurmser, Louisville, for appellant.

Stites, Wood, Helm & Peabody, Davis & Mahan, Louisville, for appellees.

MILLIKEN, Chief Justice.

Appellant Mary Florience Johnson, filed this action in the Jefferson Circuit Court against Lorin John Rudolph and the Gulf Refining Company, lessee and owner, respectively, of a gasoline filling station located at the southeast corner of Eighteenth and Oak Streets in Louisville, Kentucky. Her claim is for injuries suffered in a fall in the filling station driveway. She has appealed from a judgment entered on a jury verdict after the court had peremptorily instructed the jury to find for the defendants, appellees on this appeal.

At the trial appellant testified that on the 9th day of February, 1953, at about 8:30 p. m., she alighted from an eastbound Oak Street city bus at the corner of Eighteenth and Oak Streets. Three or four persons got off the bus ahead of her. As she stepped off the bus she took one step and stumbled over some asphalt. She said, 'There was a lump of asphalt rolled up on the concrete.' There were people waiting to get on the bus as she got off, and she says that for that reason she did not see the lump of asphalt. Also, it was nighttime, although there was light from the street light and filling station lights.

There is no curb on Oak Street at the corner of Eighteenth at the place designated as the bus stop. The curb has been cut away to make a driveway into the filling station and bus passengers alight directly onto the driveway. Some time, possibly two years, prior to appellant's mishap, Oak Street had been resurfaced with asphalt. During hot summer months cars driving into the filling station for service apparently carried on their tires portions of the asphalt, tar and gravel, and deposited it on the filling station driveway.

Rudolph, the lessee of the station, testified that in the autumn of 1952, several months prior to appellant's accident, he had used a shovel to scrape the asphalt from the driveway, but he said he did so for clean-liness, not because he saw any danger in it. He stated that since he had cleaned the driveway not much asphalt could have accumulated on it because he was never bothered with the asphalt spreading during the cool months.

Counsel for appellant asserts in his brief that the trial judge, in sustaining the appellees' motion for a peremptory instruction or directed verdict, did so on the theory that there was no servitude in the use of the sidewalk by the filling station, and that therefore there was no duty on the part of the appellees to keep the sidewalk-driveway clear of obstructions.

The trial judge in his judgment did not state the reason or reasons for his sustaining appellees' motion for a peremptory instruction. The following authorities indicate that a servitude is created when an abutting filling station owner or operator utilizes a driveway across the sidewalk as an access to the station, and that there may be a consequent duty on the part of the owner or operator to maintain the driveway safe for pedestrians using the sidewalk. Green v. Chotin, La.App., 159 So. 760, 761; Mays v. Gamarnick, 326 Mass. 139, 93 N.E.2d 236; Cuddy v. Shell Petroleum Corp Mo.App., 127 S.W.2d 24; Moore v. Monarch Gasoline & Oil Co., 225 Mo.App. 115, 35 S.W.2d 669; Graalum v. Radisson Ramp, Minn., 71 N.W.2d 904; Texas Co. v. Grant, Tex.Civ.App., 179 S.W.2d 1007; Magnolia Petroleum Co. v. Long, Tex.Civ.App., 51 S.W.2d 426, affirmed 126 Tex. 195, 86 S.W.2d 450, 451; Williams v. Kozlowski, 313 Pa. 219, 169 A. 148, 94 A.L.R. 536; Hagen v. Standard Oil Co. of Pennsylvania, 119 Pa. Super. 337, 181 A. 458, 459; Hague v. McHugh, 168 Wash. 575, 12 P.2d 748. See, also, Daly v. Mathews, 49 Cal.App.2d 545, 122 P.2d 81; Swenson v. LaShell, Colo., 195 P.2d 385; Massey v. Worth, 9 W.W.Harr. 211, 39 Del. 211, 197 A. 673; Bamberg v. Bryan's Wet Wash Laundry, 301 Mass. 122, 16 N.E.2d 653; Abar v. Ramsey Motor Service, 195 Minn. 597, 263 N.W. 917; Weigand v. American Stores Co., 346 Pa. 253, 29 A.2d 484; City of Philadelphia v. Merchant & Evans Co., 296 Pa. 126, 145 A. 706; Laurenson v. Newton, Tex.Civ.App., 25 S.W.2d 165; ...