Reeves v. French

• Decision Date: 05 May 1898
• Citation: 45 S.W. 771
• Parties: REEVES v. FRENCH. [1]
• Court: Kentucky Court of Appeals

45 S.W. 771

REEVES v. FRENCH. ^[1]

Court of Appeals of Kentucky.

May 5, 1898

Appeal from circuit court, Robertson county.

"Not to be officially reported."

Action by John W. L. Reeves against Charles H. French to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

Winfield Buckler and Simon & Buckler, for appellant.

Hanson Kennedy, for appellee.

PAYNTER J.

It is averred in the petition that the appellee, French, owned a house situated on Walnut street, in the town of Mt. Olivet that there was a cellar under the house, to which there was a chute 18 inches wide and 3 feet long, which extended into the sidewalk; that the appellee negligently left the hole open unguarded and unwatched, and the plaintiff, while passing along the street on a dark night, fell through it into the cellar, from which he sustained injury. To recover damages for the alleged injury this action was instituted. The defendant's contention is that the plaintiff, if he fell into the cellar, did not do so at the point described in the petition, but that he left the public street voluntarily, and entered upon a vacant lot belonging to John W. Zoller, which lot adjoins the lot of the defendant; that he walked across the vacant lot until he came to the cellar mentioned, when he carelessly and negligently fell into it at a point from 10 to 12 feet from Walnut street; that the opening through which he fell was not upon a street or public way, but was along the side of the house where it adjoins the vacant lot. The question for the jury to determine was whether the plaintiff had fallen into the opening on Walnut street, or had left the street, and walked into the opening along the side of the house. French's house did not set flush with the line of the pavement which was built along Walnut street for the use of those who traveled on foot. The front part of the house was two feet or more from that line, and the chute to the cellar was between the line of the pavement proper and the building, but the entire space from the house to the outer curbing was paved. The space between the building and the outer curbing was about eight feet wide.

By instruction A, which the court gave the jury on motion of the plaintiff, they, in effect, were told that the defendant was liable to the plaintiff for such damages as he sustained, not exceeding the amount claimed, from falling into the cellar through the chute on Walnut street, unless the plaintiff could have avoided such act by the exercise of ordinary care. The court did not allow the jury to determine whether or not permitting the chute which entered the cellar through the paved space between the house and the pavement to remain uncovered or unguarded was negligence. For that reason the instruction was more favorable to the plaintiff than he was entitled to have had. It therefore follows that, if it had been proper for the court to have allowed the plaintiff to prove by Neal and Collins that they had fallen through the chute on Walnut street, the plaintiff was not prejudiced by the exclusion of that testimony, because the court had, in effect, instructed the jury that it was per se negligence for the defendant to allow the chute to remain uncovered.

By instruction No. 2, which the court gave the jurors on motion of the defendant, they were told that, if the plaintiff knew the chute on Walnut street was open, and he attempted to pass the place where it...