Overton's Admrx. v. City of Louisville

Decision Date31 May 1927
Citation221 Ky. 289
PartiesOverton's Administratrix v. City of Louisville, et al.
CourtUnited States State Supreme Court — District of Kentucky

2. Municipal Corporations. — Negligence of city in failing to provide warning that street ended abruptly by running directly onto railroad tracks and into open creek would not render city liable for damages for death of one whose automobile was found in creek, unless negligence was proximate cause of injury.

3. Municipal Corporations. — Evidence that man unacquainted with street, finding it unlighted at night, drove off paved portions onto a rough dirt road and across railroad track 5 1/2 inches above ground, where street ended abruptly at open creek, would not establish his contributory negligence, as matter of law, in action against city for his death.

4. Negligence. — Ordinarily, the question of contributory negligence is for the jury.

5. Municipal Corporations. — City's negligence in failing to maintain warning that street ended abruptly at railroad track and open creek could not be held proximate cause of death of one whose automobile was found in creek an hour after he was seen driving and whose body was found a mile distant, and the city was entitled to peremptory instruction; it being as reasonable to attribute injury to some undetermined cause as to the proved negligence.

6. Negligence. "Proximate cause" of an accident is that which, in natural and continuous sequence, unbroken by any independent cause, produces the accident and without which the accident would not have occurred; proximity in time or space not being part of the definition.

7. Negligence. — Mere fact that some other cause operated with negligence of defendant will not relieve the defendant from liability for accident.

Appeal from Jefferson Circuit Court

MORTON K. YONTS and J.W. FOWLER, JR., for appellant.

W.T. BASKETT and GROVER SALES for City of Louisville.

TRABUE, DOOLAN, HELM & HELM for Louisville & Nashville Railroad Company.



This action was instituted in the Jefferson circuit court by the administratrix of Burr M. Overton against the city of Louisville and the Louisville & Nashville Railroad Company, seeking to recover damages from the appellees for the death of her husband. The Louisville & Nashville Railroad Company filed a demurrer to the petition, which was sustained. The order sustaining the demurrer was entered on the 5th day of July, 1924. There is no further reference in the record to the railroad company until the 30th day of August, 1926, when an order was entered showing that appellant declined to plead further, and that the petition as against the railroad company was dismissed. The case was tried the second time in March, 1926, as to the city of Louisville, and the court gave an instruction directing the jury to find for the city.

The negligence alleged against the railroad company is that it owns a switch consisting of a single track running parallel with Bear Grass creek on the west bank thereof, which track crosses or abuts and meets Lampton street where said street abuts or meets the property line of the railroad company, and that at the point where the street abutted the property of the railroad company, or where the railroad company's track crossed the street, there was maintained or allowed to exist by the railroad company an open approach over its property from a point where said Lampton street abuts its property and ending abruptly and running into Bear Grass creek. It is alleged that it was the duty of the railroad company, either separately or in conjunction with the city, to have maintained a fence or blockade or some signal or safety device or warning at the end of Lampton street where it abutted the property of the railroad company, so that the traveling public might be warned that Bear Grass creek was on the other side of the railroad track. The railroad company maintained no signal, fence, or blockade to prevent travelers crossing its track at that point and driving into Bear Grass creek, so it is alleged in the petition. The sole negligence alleged against the railroad company was that it failed to take such steps as would protect a traveler from going onto and across its property, and thereby running into Bear Grass creek, which had been converted into a canal with concrete walls at that point. If Lampton street extended to and across the railroad track and beyond, it cannot be said that the railroad company was negligent in not blockading a public highway. If it ended when it reached the property of the railroad company, it was not incumbent on that company to warn the traveling public that the street ended at that particular point. We have not been favored by a discussion of the alleged negligence of the railroad company in the brief for appellant, and therefore we do not have the views of counsel on this point, but it seems to us that the petition did not state a cause of action against the railroad company and that the lower court was correct in sustaining the demurrer.

It is alleged in the petition that Lampton street is one of the public highways in the city of Louisville which had been constructed and maintained by the city as such for many years; that it was a frequented highway and much traveled by the general public; that Lampton street ended abruptly by running directly onto the tracks and property of the Louisville & Nashville Railroad Company and into Bear Grass creek. It is alleged that the city, either separately or in conjunction with the railroad company, should have maintained a fence or blockade or some signal or safety device at the end of Lampton street to warn travelers of the danger in crossing the railroad property and running into Bear Grass creek. It was further alleged that it was the duty of the city at this point to maintain a street light in good repair, but notwithstanding these duties on the city, as alleged, it was alleged that the city had failed and neglected to place or keep a fence or safety device or some warning signal of danger at said point, and that the city had failed to maintain its street light burning so that it would be possible to see the danger ahead. This condition had prevailed, so it is alleged, for a long time, and that the city knew of the alleged dangers and unsafe condition at the end of the street aforesaid. The death of appellant's intestate was caused by this alleged negligence, so it is claimed by appellant, on the 3d day of January, 1924, about 10 o'clock at night, while he was riding in a Ford coupe east on Lampton street and crossing over the point where Lampton street abuts or intersects the property of the railroad company and leads directly into Bear Grass creek; it is alleged that he was unaware of the dangerous and unsafe condition of the street, and that he could not have known of its condition by the exercise of ordinary care, and that by reason of the negligence of the city he drove his car up to and over the end of said street across the railroad track, thereby causing himself and car to be precipitated into Bear Grass creek on the hard concrete incasement thereof and into the water of said creek, as the result of which fall he died. Damages in the sum of $54,000 are claimed for the death of appellant's instestate, and $250 for injury to his car. The city filed an answer traversing the allegations of the petition and pleading contributory negligence on the part of appellant's intestate.

In April, 1925, the case was tried and resulted in a verdict in favor of appellant for $4,000. A motion for a new trial was sustained and the verdict and judgment...

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2 cases
  • Watkins' Adm'r v. City of Catlettsburg
    • United States
    • Kentucky Court of Appeals
    • March 25, 1932
    ... ...          Waugh & ... Howerton, of Ashland, and Martin T. Moran, of Louisville, for ... appellant ...          George ... F. Gallup and Martin & Smith, all of ... ...
  • Gaines' Administratrix v. City of Bowling Green
    • United States
    • United States State Supreme Court — District of Kentucky
    • October 31, 1930
    ...possible." Also see Setter's Adm'r v. City of Maysville, 114 Ky. 60, 69 S.W. 1074, 24 Ky. Law Rep. 828; Overton's Administratrix v. City of Louisville, 221 Ky. 289, 298 S.W. 968. Tow, who was in the Gaines car, testified that he saw Crumbly's car turn obliquely from the east side of College......

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