Spangler's Adm'r v. City of Middlesboro
Decision Date | 21 December 1945 |
Citation | 301 Ky. 237,191 S.W.2d 414 |
Parties | SPANGLER'S ADM'R v. CITY OF MIDDLESBORO. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County; J. S. Forester, Judge.
Action by James R. Spangler, administrator of the estate of Peggy Joyce Spangler, deceased, against the City of Middlesboro for wrongful death of decedent based on alleged negligence of defendant in permitting dangerous defects in its streets. From an adverse judgment, plaintiff appeals.
Reversed.
F. R Whalin, of Middlesboro, and H. L. Bryant, of Pineville, for appellant.
H. F White, of Middlesboro, and W.L. Hammond, of Pineville, for appellee.
This is an action for wrongful death under section 411.130 KRS, based on the alleged negligence of the City of Middlesboro in permitting dangerous defects in its streets.
There is a natural stream flowing along the West side of twenty-fifth street which crosses Exeter Avenue at the intersection of the two streets. In improving Exeter Avenue the city constructed a concrete culvert across Exeter Avenue at this intersection so that the flow of the water would pass under it. The top of this culvert constitutes a part of the surface of twenty-fifth street and is used by the public as a part of that street. There is no guard rail or other protection at the end of the culvert, and the top of the culvert is eight or ten feet above the bed of the stream.
On February 17, 1944, Peggy Joyce Spangler, an infant six years of age, and her sister, while walking home from school approached this intersection when the whole surface of the street at that point was covered with approximately six inches of water which had been caused by a freshet or flash flood. Child-like they began to wade and play in the water and Peggy Joyce walked off the unprotected end of the culvert and was immediately swept through it and drowned. Due to an accumulation of debris her body was not recovered until several hours later.
On December 30, 1944, an administrator was appointed for the estate and on February 9, 1945, he brought this action charging the city with negligence in the construction and maintenance of the culvert.
The notice to the city, required by section 411.110 KRS, to be given within ninety days of the accident, was not given within the time specified, and the petition contained no allegations in respect of such notice. The city's demurrer to the petition was sustained on the authority of Galloway v. City of Winchester, 299 Ky. 87, 184 S.W.2d 890.
The administrator urges that the ninety day notice to the city is not a prerequisite to an action against a city where death results from the injury.
The determination of this question requires proper construction of section 411.110 which reads as follows:
So far as we have been able to ascertain, this court in construing this statute has only considered cases where the injuries...
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