Lampton & Burks v. Wood

• Decision Date: 18 May 1923
• Citation: 199 Ky. 250,250 S.W. 980
• Parties: LAMPTON & BURKS ET AL. v. WOOD.
• Court: Kentucky Court of Appeals

250 S.W. 980

199 Ky. 250

LAMPTON & BURKS ET AL. v. WOOD.

Court of Appeals of Kentucky.

May 18, 1923

Appeal from Circuit Court, Boyle County.

Action by Sarah Lynn Wood against Lampton & Burks and another. Judgment for the plaintiff, and defendants appeal. Affirmed.

Bagby &amp Huguely, of Danville, and Fred Forcht, of Louisville, for appellants.

Puryear & Clay, of Danville, for appellee.

TURNER C.

In May 1920, appellee was one of the occupants of a buggy driven by another, going south on Maple avenue in Danville. The buggy came in contact with a pile of stone about four feet high on the driveway of that street and was overturned, whereby she was injured. This happened about 8 o'clock at night, or shortly thereafter, when it was dark.

This is an action by her against the city of Danville and Lampton &amp Burks, contractors, wherein she seeks damages because of such injuries. The negligence complained of is that the contractors had placed upon and permitted to remain upon the driveway of the street a large pile of crushed rock in such way as to occupy more than half of the roadway and without placing lights or other warnings, or any sufficient means of warning persons using the street, of the existence of such obstruction and unsafe condition, and that they each knew or could have known by the exercise of ordinary care of the obstruction and unsafe condition caused thereby, and each negligently failed to remove same or to use proper or any means to advise the traveling public of the obstruction.

The separate answers of the two defendants put in issue the material facts alleged in the petition, and in separate paragraphs each relied upon contributory negligence, and in still a separate paragraph they each alleged that the city, under authority of law, had contracted with Lampton & Burks to construct and pave with asphalt the street in question and other streets within the city, and that the city was charged with the governmental duty and function of constructing and keeping its streets in safe condition for public travel, and that the stone was placed in the street for the purpose of constructing and paving the same, and relied upon its alleged exercise of such governmental function as defeating the right of the plaintiff to any recovery for damages resulting from the tort sued on.

To this latter paragraph a demurrer was sustained by the trial court.

On the trial plaintiff was awarded a verdict for $500 in damages, upon which judgment was entered, and the defendants have appealed.

Three reasons are urged for reversal: (1) Because of the erroneous action of the court in sustaining a demurrer to the paragraph pleading the exercise of a govermental function; (2) because of the court's refusal to give the peremptory instruction asked for at the conclusion of all the evidence, for the reason, as claimed, that all the evidence showed defendants had used reasonably sufficient means to warn the traveling public of the presence of the obstruction; and (3) because the damages were excessive.

1. It would appear to be wholly unnecessary to go into any extended discussion of whether a municipality in this state is liable for its negligent failure to maintain...