Spangler's Adm'r v. City of Middlesboro

Decision Date21 December 1945
Citation301 Ky. 237,191 S.W.2d 414
PartiesSPANGLER'S ADM'R v. CITY OF MIDDLESBORO.
CourtKentucky 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.

DAWSON Justice.

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:

'No action shall be maintained against any city in this state because of any injury growing out of any defect in the condition of any bridge, street, sidewalk, alley or other public thoroughfare, unless notice has been given to the mayor, city clerk or clerk of the board of aldermen in the manner provided for the service of notice in actions in the Civil Code of Practice. This notice shall be filed within ninety days of the occurrence for which damage is claimed, stating the time of and place where the injury was received and the character and circumstances of the injury, and that the person injured will claim damages therefor from the city.'

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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17 cases
  • Phelps v. Louisville Water Co.
    • United States
    • Supreme Court of Kentucky
    • April 24, 2003
    ...171, 136 S.W. 212 (1911) (affirming a judgment for wrongful death brought against city under KRS 411.130); Spangler's Adm'r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414 (1945) (holding that the 90-day notice contained in KRS 411.110 is not controlling in a wrongful death case brought......
  • Fenton v. Sinclair Refining Co., 36289
    • United States
    • Oklahoma Supreme Court
    • February 23, 1955
    ...Refractories Co. v. Mozier, 235 Ky. 252, 30 S.W.2d 952; Wells' Adm'r v. Lewis, 213 Ky. 846, 281 S.W. 996; Spangler's Adm'r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414; City of Louisville v. Hart's Adm'r, 143 Ky. 171, 136 S.W. 212, 35 L.R.A.,N.S., 207; Louisville & N. R. Co. v. Schum......
  • Stormo v. City of Dell Rapids
    • United States
    • South Dakota Supreme Court
    • June 7, 1955
    ...87 Kan. 394, 124 P. 166, 40 L.R.A.,N.S., 749; Glasgow v. City of St. Joseph, 353 Mo. 740, 184 S.W.2d 412; Spangler's Adm'r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414; Bigelow v. Town of St. Johnsbury, 92 Vt. 423, 105 A. 34; Prouty v. City of Chicago, 250 Ill. 222, 95 N.E. 147; see ......
  • Sturgill v. City of Owenton, 2015-CA-000586-MR
    • United States
    • Kentucky Court of Appeals
    • September 15, 2017
    ...as well as to permit an examination of the injuries alleged to have been sustained by the claimant.Spangler's Adm'r v. City of Middlesboro, 301 Ky. 237, 239, 191 S.W.2d 414, 415 (1945). See also Roehrig v. City of Louisville, 454 S.W.2d 703, 704-05 (Ky. App. 1970). Kentucky courts have unif......
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