Sinkhorn v. Lexington, H. & P. Turnpike Road Co.

• Decision Date: 04 December 1901
• Citation: 65 S.W. 356,112 Ky. 205
• Parties: SINKHORN v. LEXINGTON, H. & P. TURNPIKE ROAD CO. et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 356

112 Ky. 205

SINKHORN v. LEXINGTON, H. & P. TURNPIKE ROAD CO. et al. ^[1]

Court of Appeals of Kentucky.

December 4, 1901

Appeal from circuit court, Mercer county.

"To be officially reported."

Action by John Sinkhorn against the Lexington, Harrodsburg &amp Perryville Turnpike Road Company and Mercer county to recover damages for personal injuries. Judgment for defendants, and plaintiff appeals. Affirmed.

Gaither & Vanarsdall and C. Terhune, for appellant.

J. T Wilson, for appellees.

WHITE J.

The appellant, John Sinkhorn, was injured on a bridge on the Lexington, Harrodsburg & Perryville Turnpike Road, and brought this action against that turnpike road company, and also against Mercer county, lessee thereof, to recover damages for such injuries. The trial court sustained a demurrer to his petition. Declining to plead further, his action was dismissed, and he appeals.

The petition states that the Lexington, Harrodsburg & Perryville Turnpike Road Company is a corporation regularly and duly organized and authorized to construct and maintain a turnpike road in Mercer county, which it had done for many years; that in pursuance of an act of March 17, 1896, a vote was had in Mercer county, and "free turnpikes" was voted in the county. The turnpike road company then, as the petition alleged, conveyed the turnpike road to the county by lease and since that time the road was under the control and management of Mercer county, and was at the time of the injury complained of. The petition alleges that the defect from which he received his injury existed before the road was leased to the county. It is further alleged that Mercer county in taking the lease of the road, undertook, in addition to the rental to be paid, to save and keep the turnpike company harmless from any suits that may be brought against said turnpike company should said road get out of repair. It is further alleged that since the contract of lease the road has been a free road, no tolls being collected thereon, and the same has been managed and controlled exclusively by the county of Mercer. Then is stated the injury, and causes thereof, showing that the bridges were out of repair. Subsection 5, § 4748b, Ky. St. (being the act of March 17, 1896), provides: "If it shall appear that a majority of all the votes cast for and against said proposition are in favor of said proposition, then the fiscal court may acquire, by gift, lease, purchase or contract, any or all the turnpike roads, or parts of such, as lie within the county, on the best terms consistent with public interests, in the discretion of said court, and may provide for the construction of new turnpike or gravel roads when the public good demands it,"--and then provides a tax to maintain the roads. Subsection 6: "All the turnpike and gravel roads thus acquired or constructed shall become public roads, and shall be maintained and kept in repair by and through the provisions of the fiscal court. *** But said roads shall be free of toll to the traveling public." Subsection 7 empowers the directors of any turnpike or gravel road to convey to the fiscal court the title to such turnpike road. Thus it is seen that, when free turnpikes are voted in any county by the fiscal court of such county, the directors of any road in that county are authorized and empowered to contract by gift, lease, or absolute sale of any turnpike road or part thereof in such county. It is also seen that when such contract is made the road becomes free of...