Strauss v. City of Louisville

• Decision Date: 29 March 1900
• Parties: STRAUSS v. CITY OF LOUISVILLE et al. [1]
• Court: Kentucky Court of Appeals

55 S.W. 1075

108 Ky. 155

STRAUSS v. CITY OF LOUISVILLE et al. ^[1]

Court of Appeals of Kentucky.

March 29, 1900

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by Catharine Strauss against the city of Louisville and others to recover damages for personal injuries. Judgment for defendants, and plaintiff appeals. Affirmed.

D. B Baker and Bennett H. Young, for appellant.

Byron Bacon and H. L. Stone, for appellees.

BURNAM J.

Appellant seeks a reversal of the judgment of the lower court sustaining separate demurrers in behalf of appellees to her original and amended petitions. The facts on which she bases her claim for recovery, as set up in her petition, are as follows: She says that the defendant Henning was the owner of a lot on the east side of Fourth street, between Park and Magnolia avenues, and was erecting a residence thereon, in September, 1897, under a contract with her codefendant Merriwether; that the pavement in front of this lot was in a dangerous and unsafe condition, and that Merriwether, in carrying out his contract to erect the dwelling, with the knowledge and consent of the city of Louisville and Henning obstructed the pavement and street in front of the house with beds for mixing mortar to be used in the erection of the building, so as to create a nuisance, which continued some time prior to the time of the accident to her; that while she was passing along the pavement opposite the mortar beds a piece of lime was carelessly and negligently thrown therein by the agents of Merriwether, a part of which spattered into her eye, causing great pain and suffering. She charges that the mixing of this mortar was done with the knowledge of the city of Louisville and of the defendant Henning, who well knew that it was dangerous and unsafe to mix mortar on the sidewalk, and that it was a nuisance and menace to the safety of those passing along that street.

Appellant seeks to charge appellees with responsibility for the alleged negligence of Merriwether upon the ground that "if the owner of real estate suffers a nuisance to be created or continued by another, on or adjacent to his premises, in the prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom to a third person"; and we are referred, in support of this proposition, to the cases of Matheny v. Wolffs, 2 Duv. 137, and Baumeister v Markham (Ky.) 39 S.W. 844. It is not alleged that appellant's injury was occasioned by any defect in the pavement, but that it was entirely attributable to the negligence of the servants of Merriwether in throwing lime into the mortar bed so as to splash a part of it in her eye. In both of the cases referred to the accident complained of resulted from the owner of real estate in a city employing contractors to excavate the pavement in front of the building, to be used as a part of the cellar, and permitting the...