Ockerman v. Woodward

• Decision Date: 28 September 1915
• Citation: 178 S.W. 1100,165 Ky. 752
• Parties: OCKERMAN v. WOODWARD.
• Court: Kentucky Court of Appeals

178 S.W. 1100

165 Ky. 752

OCKERMAN v. WOODWARD.

Court of Appeals of Kentucky.

September 28, 1915

Appeal from Circuit Court, Nelson County.

Action by E. J. Ockerman against W. C. Woodward. From a judgment for defendant, plaintiff appeals. Affirmed.

Ernest N. Fulton and G. S. & J. A. Fulton, all of Bardstown, for appellant.

Redford C. Cherry and Kelley & Kelley, all of Bardstown, for appellee.

CLAY C.

Alleging that the defendant, W. C. Woodward, placed on the traveled part of one of the public highways of Nelson county, with gross and wanton negligence, a large quantity of stone, with no lights, signals, or guards of any kind to warn travelers of the obstruction, and that while driving along said highway in his buggy while it was dark, and without any knowledge of the existence of the obstruction, he ran into the pile of stone, and that his horse and buggy were damaged and he himself was injured, plaintiff, E. J. Ockerman, brought this action to recover damages. Defendant pleaded that he was a member of a firm that had been employed by Nelson county to reconstruct and repair its public roads, and that the members of the firm, as the agents of Nelson county, placed the stone in the highway in the prosecution of such work. By reply plaintiff pleaded that the contract made by Nelson county with the defendant was made without competitive bidding and without following the statutes. He further alleged that defendant was an independent contractor. A demurrer having been sustained to this reply, plaintiff's petition was dismissed, and he appeals.

It has long been the settled rule in this state that for personal injuries caused by defects in the public highways neither the county nor its officers, agents, or employés are answerable in damages. Moberley v. Carter Co., 5 Ky. Law Rep. 694; Hite v. Whitley County Court, 91 Ky. 168, 15 S.W. 57, 11 L. R. A. 122; Wheatly v. Mercer, 9 Bush. (72 Ky.) 704; Hardwick v. Franklin, 120 Ky. 78, 85 S.W. 709, 27 Ky. Law Rep. 484; Sheppard v. Pulaski County, 18 S.W. 15, 13 Ky. Law Rep. 672. It is insisted however, that, as the reply shows that defendant was an independant contractor, the rule above announced does not apply to the case at bar. This distinction was not recognized in the case of Blue Grass Traction Co. v. Grover, 135 Ky. 685, 123 S.W. 265, 35 Am. St. Rep. 488. There the traction company contracted with the county to maintain a certain bridge in repair. The bridge was permitted to get out of repair, and plaintiff's horse was injured. It was held that the traction company was not liable. The reasoning on which the opinion proceeds is that the county, being an arm of the government, is not liable. In taking care of the public roads and bridges, it must exercise its governmental functions either through its officers, agents, and employés or contractors. If the contractor was held liable, then the real burden would fall on the county,...