Pugh v. City of Catlettsburg

• Decision Date: 04 May 1926
• Citation: 283 S.W. 89,214 Ky. 312
• Parties: PUGH v. CITY OF CATLETTSBURG ET AL.
• Court: Kentucky Court of Appeals

283 S.W. 89

214 Ky. 312

PUGH v. CITY OF CATLETTSBURG ET AL.

Court of Appeals of Kentucky.

May 4, 1926

Appeal from Circuit Court, Boyd County.

Action by Catlett B. Pugh against the City of Catlettsburg and another. Judgment for defendants, and plaintiff appeals. Affirmed.

S. S Willis, of Ashland, and A. R. Johnson, of Ironton, Ohio, for appellant.

R. S Dinkle and V. A. Dinkle, both of Catlettsburg, for City of Catlettsburg.

Browning & Reed, of Ashland, for Chesapeake & O. Ry. Co.

McCANDLESS J.

Catlett B. Pugh sued the Chesapeake & Ohio Railway Company and the city of Catlettsburg to recover damages for personal injuries and the destruction of his automobile, occasioned by a collision between the automobile and an iron pier supporting the overhead tracks of the railway company where they cross Oakland avenue in that city. At the conclusion of all the evidence, a directed verdict was returned in favor of defendants and plaintiff appeals.

Oakland avenue runs east and west, intersecting with Plum and Mound streets. Between these intersections it is crossed at an acute angle by the tracks of the railway, upon an overhead bridge. This is supported by twin iron piers 15 inches square, resting on a concrete foundation about 4 feet in diameter; the distance from one set of piers to another, and the corresponding length of the bridge spans being 35 feet. The street is about 60 feet in width, and, after excluding sidewalks, the paved surface is 30 feet in width, but owing to the angle of the intersection, the distance crossed by the bridge is much longer than the width of the street. This situation has been met by placing one pair of the piers in the center of the street and the corresponding piers beyond the curbing, leaving the paved surface of the street on each side of the pedestals approximately 13 feet to the outer curb; one side being used for the eastbound and the other for west-bound travel. No lights are attached to the piers, but there is an arc light of 1,200 candle power at the center of each street intersection the distance between the two being about 438 feet; the one at Plum street is 153 feet from the viaduct. These lights hang 18 feet from the ground, and a person standing at the Plum street intersection may see the light globe at the Mound street intersection; the line of vision being beneath the viaduct, which is 13 feet in height.

On the evening of July 24, 1923, appellant, in company with three others, was going east on Oakland avenue in his own car which was driven by his son, an experienced chauffeur, and traveling at the rate of 12 or 15 miles per hour. Neither of the parties had traveled this street before, nor knew of this viaduct. At the Plum street intersection they encountered a car coming into Oakland avenue from the south, and turned to the left to pass it, continuing east near the center of the street, but as they testify to the right of the center line. As they passed this car, they observed a high-powered car with glaring headlights approaching them from the east. The driver of plaintiff's car dimmed his headlights, but was so blinded by the light of the other car that he could not see, as he testifies, more than 5 feet in front of him. He did not observe the bridge pier in the center of the street, and, as the other car passed, the left wheel of his car collided with the pier, throwing the occupants out, severely injuring appellant, and practically destroying his machine.

It is first urged that, as it is the duty of the city to construct and maintain its streets in a reasonably safe condition for ordinary travel, that the construction and the maintenance of the piers in the center of the street obstructed such use and created a danger to the traveling public, rendering both the city and the railway company liable for injuries caused by that obstruction; it being alleged in the petition, and not denied, that the city authorized such maintenance and construction. In this respect section 768, Kentucky Statutes, authorizes a railway company--

"to construct its road upon or across any * * * highway, street, lane, alley, * * * and in case the road is constructed upon any public street or alley, the same shall be upon such terms and conditions as shall be agreed upon between the corporation and the authorities of any city in which the same may be."

The city council is thus given power to authorize the use of the streets by the railway and to determine the sufficiency of the type and plan of construction; and, if constructed and maintained in accordance therewith, neither the city nor the railway will be liable in an action of negligence for an injury arising therefrom, unless the plan adopted is manifestly unsafe or dangerous. In Teager v. City of Flemingsburg, 60 S.W. 718, 109 Ky. 746, 22 Ky. Law Rep. 1442, 53 L.R.A. 791, 95 Am.St.Rep. 400, we said:

"But when the plan is one that many prudent men might approve; or where it would be so doubtful upon the facts whether the street as planned or ordered by the city governing board was dangerous or unsafe or not--that different minds might entertain

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