Price Bros. v. City of Dawson Springs

• Decision Date: 01 February 1921
• Citation: 190 Ky. 349,227 S.W. 470
• Parties: PRICE BROS. v. CITY OF DAWSON SPRINGS. PRICE v. CITY OF DAWSON SPRINGS.
• Court: Kentucky Court of Appeals

227 S.W. 470

190 Ky. 349

PRICE BROS. v. CITY OF DAWSON SPRINGS.

PRICE v. CITY OF DAWSON SPRINGS.

Court of Appeals of Kentucky.

February 1, 1921

Appeal from Circuit Court, Hopkins County.

Two actions by Price Bros., a partnership, etc., and by J. M Price, against the City of Dawson Springs. Judgments for defendant, and plaintiffs appeal. Affirmed.

Yost &amp Franklin, of Madisonville, for appellants.

J. A Jonson and Laffoon & Waddill, all of Madisonville, for appellee.

SETTLE J.

In these two actions against the city of Dawson Springs, the first instituted by a partnership composed of Geo. M. Price and J. M. Price, engaged in the retail drug business under the firm name of Price Bros., the second by J. M. Price damages were attempted to be recovered of the city for the flooding, as alleged in each petition, of the basement of a brick building on Railroad avenue owned by J. M. Price and occupied by Price Bros. as a drug store, by overflows of water and sewerage from a sewer which the city negligently constructed and maintained in such defective condition as made it too small and otherwise insufficient to carry off the sewerage and water from ordinary rainfalls that necessarily ran into and were intended to be carried off by it. The damages amounting to $1,000 claimed by Price Bros. were for the alleged injury to and destruction by such overflows of certain merchandise carried in stock and for sale in their business which they, as further alleged, were necessarily compelled to store in the basement of the building. The damage of $500 claimed by J. M. Price were for alleged injuries to the building in question caused by flooding of the basement.

The answer filed by the city of Dawson Springs in each action contained two paragraphs, the first traversing the allegations of the petition therein, and the second alleging that the flooding of the building was caused by unusual and extraordinary rainfalls, and that the owners of the drug store and owner of the building were guilty of contributory negligence in failing to make any effort to drain the basement, or to remove the merchandise therefrom, both and either of which, it was alleged, might have been done by the use of ordinary care before the merchandise was reached or injured by the water overflowing the basement. All affirmative matter of the answers were controverted by replies. By agreement of the parties the two actions were submitted and tried together in the court below; the jury returning in each case a verdict for the city. New trials were refused the unsuccessful parties, respectively; and as by these appeals the judgments entered upon the respective verdicts in that court are before us for review, and the two appeals have been submitted and considered together, the decision we have reached in each case and the reasons therefor will be set forth in this single opinion.

Two grounds are urged by appellants' counsel for a reversal of the judgments appealed from: First, that the verdicts are unsupported by and flagrantly against the evidence; second, that the trial court did not properly instruct the jury. As bearing on the first of these contentions it should be remarked that the appellee's ownership of the sewer is put in issue by the pleadings, it being not only denied in each of the answers that it was or is owned by the city, but also that it constructed, maintained, or at any time controlled it, and we have rarely found evidence more conflicting than that contained in the record on these issues, that of appellants conducing to prove the city's construction and ownership of the sewer, and that of appellee as strongly conducing to prove that, except where it crosses the street known as Railroad avenue, the sewer is upon or under privately owned lots of citizens of the city, and that it was constructed and is maintained at the expense of these owners or others unconnected with the city government.

It is true evidence was introduced in appellants' behalf to the effect that the sewer as originally constructed was changed by the putting in it of tile pipes by the Dawson Salts &amp Water Company from a point under its building across its lot and the courthouse lot; also that it lowered the sewer under its building below the cellar floor and placed a storm opening or manhole in the sewer on a lot in the rear of appellants' drug store; and to show appellee's consent to these changes in the sewer appellants introduced...