Martin v. City of Winchester
| Decision Date | 05 May 1939 |
| Citation | 278 Ky. 200 |
| Parties | Martin v. City of Winchester. |
| Court | Supreme Court of Kentucky |
3. Municipal Corporations. — A municipality is liable in tort for consequences of failure to maintain its public ways in reasonably safe condition for travel only where it failed to provide for physical safety of highways or streets for travelers' use.
4. Municipal Corporations. — Government law-enacting agencies, such as city councils, are not required to maintain constant signals, notifying inhabitants of governmental units and public at large of all enacted laws, especially those providing for safety of travelers on public highways, since every one is presumed to know law regulating affairs of communities affected thereby, and it is matter of public record of which public and all persons affected by it must take notice.
Appeal from Clark Circuit Court.
MARCUS REDWINE and J.T. BOWSER, JR., for appellants.
T. STANLEY CLAY for appellee.
Before W.J. Baxter, Judge.
Affirming.
Section 2739g-37 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes enacts certain duties and makes certain provisions with reference to travelers on highways and streets at intersections, and provides that persons traveling certain designated highways or streets shall have the right-of-way over other travelers on intersecting streets not belonging to that class. One of the described classes of streets upon which travelers have such prescribed superior rights embraces those that the council of the city in which the street is located may designate by ordinance as a boulevard, and when done travelers on streets intersecting such boulevard, or other highways, expressly mentioned in the statute, are required "to stop before entering said inter-county seat highways or highway of a higher class" than the one upon which he is traveling.
On September 7, 1923 (the statute supra having been first enacted by Chapter 90 of the Session Acts of 1920) the city council of the city of Winchester enacted an ordinance — pursuant to the power conferred under the section of the statute supra — wherein it designated all of Boone Avenue (one of the streets in the city) lying west of Main street as an arterial highway or boulevard, thereby rendering it necessary for persons coming into that portion of Boone Avenue over an intersecting street to stop before entering the boulevard so designated by the ordinance. College Avenue intersects with that part of Boone Avenue which was designated as a boulevard by the city ordinance. On April 10, 1937, the plaintiff and appellant below, Henry Martin, was traveling north in an automobile on and over the designated boulevard and in passing its intersection with College Avenue one Elmer Decker, who was traveling east in his automobile on College Avenue, collided with plaintiff's automobile and injured it and him, by which — according to the petition in this case — he sustained damages in the total sum of $1,241, which amount he sought to recover by this action filed against the city in the Clark Circuit Court.
The alleged grounds for recovery were, that the city did not maintain a stop signal on College Avenue at its intersection with the ordinance-created boulevard so that persons entering therefrom onto the boulevard might stop before doing so; and which Decker failed to do in the instant case. The petition alleged, in substance, that the city was under a legal duty to erect and maintain, in the circumstances, a stop signal, and that its failure to do so was an act of negligence which rendered traveling conditions over both streets dangerous and unsafe, and that such negligence was the proximate cause of plaintiff's injuries growing out of the complained of collision, it being expressly alleged that: "Defendant was guilty of negligence in not maintaining at all times a stop sign on College Street where it crosses Boone Avenue."
A number of other conclusions of the pleader are inserted in plaintiff's petition and its amendment, to which as amended the court sustained defendant's demurrer filed thereto; and plaintiff declining to plead further, the petition as amended was dismissed, to reverse which plaintiff prosecutes this appeal.
It was nowhere alleged that there was any positive rule of law — statutory or otherwise — mandatorily requiring the city to maintain a stop sign in the outlined circumstances at the place designated, and which was due to the fact, no doubt, that there existed no such principle of law, it being entirely within its discretion as to whether or not such precautionary measures should be taken. That being true there was no duty to maintain such a signal for the benefit of travelers on either of the intersecting streets, and since negligence is the failure to perform a duty to one, there can be no negligence where there is no duty. For that reason alone it would appear that this opinion might close at this point with repeating the current abbreviated expression "'nough said!". But for the purpose of elucidation, we will continue by giving an analysis of the situation substantiating the conclusion above expressed, and later by citing fortifications of express determinations of the courts in harmony therewith.
In Volume 14 of West's Kentucky Digest, page 431, covering the subject of "Municipal Corporations" there is listed (with none to the contrary) a number of cases in which we held that a municipal corporation is not civilly liable in tort for the...
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O'Hare v. City of Detroit
...signs is a governmental function. Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.W.2d 357, 161 A.L.R. 1391; Martin v. City of Winchester, 278 Ky. 200, 128 S.W.2d 543. In these 2 cases, which were cited and relied upon by the trial judge, it was held that suits based upon allegedly negli......