Krieger v. Louisville Water Co.
| Decision Date | 22 March 1938 |
| Parties | KRIEGER v. LOUISVILLE WATER CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.
Action by Margaret Smith Krieger against the Louisville Water Company for injuries sustained when plaintiff tripped over a water key box protruding above a sidewalk. From a judgment on a directed verdict for defendant, plaintiff appeals.
Reversed with directions.
W. J Goodwin, of Louisville, for appellant.
Davis, Boehl, Viser & Marcus, of Louisville, for appellee.
Margaret Smith Krieger appeals from a judgment based on a directed verdict. Her action is grounded on the alleged negligence of the Louisville Water Company in permitting its water key box that it had on the sidewalk on Cabel street, in the city of Louisville, Jefferson county, Ky. to become and remain in a dangerous condition, and by reason thereof she in using the sidewalk near her home and place of business struck it with her foot, causing her to fall against the sidewalk, to her damage in the sum of $5,100. Appellee, answering, denied all material allegations of her petition and affirmatively pleaded that her damage and injury, if any, was the direct result of her own contributory negligence; that her contributory negligence was the proximate cause of her injury. On those issues her case was tried before a jury. After the evidence offered by her was heard, upon motion of appellee, the court directed the jury to return a verdict for appellee, which was done.
The evidence is brief. Appellant was the only witness who stated how her injury occurred. At the time of her alleged injury she was a widow and bore the name of Margaret Smith. After the institution of her action she married Raymond L. Krieger. An amendment was filed alleging that fact. The court ordered that her action proceed in the name of Margaret Smith Krieger. At the time of her injury she conducted a small store, in which she furnished food for her customers. Her store fronted on Cabel street, and her residence was in the rear of the store, at No. 1206 Franklin street. About 7:30 o'clock in the evening, on February 13, 1936, and after dark, she was serving food to her customers, who were railroad employees. It became necessary, in order to secure change for her railroad customers, to pay her for the food they had purchased. She had to leave the store and go out in the city to secure the change. Her automobile was parked at the curbing on Cabel street. She went from her store through the door on Cabel street onto the sidewalk for the purpose of going to her automobile. It was dark. She could not see where she was traveling. In crossing the sidewalk, the heel of her shoe caught in the water key box, causing her to fall heavily upon the brick sidewalk, injuring her to such an extent that she could not get up. She was picked up and carried into the house. At the time there was a light on Cabel street, but there is no evidence of its location or whether it made the water key box visible to her. The water key box had been in the sidewalk in its unsafe and dangerous condition for two years or more. It protruded above the level of the sidewalk about three inches. Her purpose was to get the change for the railroad men who, on account of their duties, had little time to wait. She walked rapidly across the sidewalk in the dark not thinking of the water key box or its protruding position in the street. She did not see it at all. She had seen it before and knew it was there. She had been living at this place for about six months and, in going through the gate and over the sidewalk, had noticed it often, just casually, but at this time she was thinking only about getting the change and hurrying back to her customers who were in her store at the time getting their supper. It was too dark to see the water key box. The injury received by her was abundantly established. A...
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