Teager v. City of Flemingsburg

• Decision Date: 07 February 1901
• Citation: 60 S.W. 718,109 Ky. 746
• Parties: TEAGER v. CITY OF FLEMINGSBURG. [1]
• Court: Kentucky Court of Appeals

60 S.W. 718

109 Ky. 746

TEAGER v. CITY OF FLEMINGSBURG. ^[1]

Court of Appeals of Kentucky.

February 7, 1901

Appeal from circuit court, Fleming county.

"To be officially reported."

Action by M. M. Teager against the city of Flemingsburg to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

Thos L. Given, G. A. Cassidy, and John P. McCartney, for appellant.

O. R Bright and W. G. Dearing, for appellee.

O'REAR J.

Appellant was injured while traveling along the streets of the city of Flemingsburg, January, 1899. He fell, breaking a thumb making its amputation necessary. The fall was caused, he alleges, by his stumbling on a step made in the pavement of the street he was walking. This step was four or five inches high. He sues the city, alleging that the step was not necessary, and was in itself dangerous to those passing over it. On the trial it developed as an undisputed fact that there was a slight grade in the street for some distance before the point where the step was made, and that the purpose of this step was two-fold: First, to level the grade to some extent; and, second, thereby to serve as a watershed throwing the surface water of the street from the pavement. There was nothing to show that the step was out of repair, or unskillfully constructed. Some of appellant's witnesses testified that, in their opinion, the step was dangerous; others, that it was not. But this was not because of any special manner of construction. It seems that some of the witnesses thought any step was necessarily dangerous to pedestrians at night. And this is doubtless true to some extent. The circuit court having, at the close of plaintiff's evidence, given a peremptory instruction in favor of the city, we are brought to consider whether the building a sidewalk with a step, which, from the nature of the grade, the city government deemed necessary and proper, is of itself such negligence as will warrant a recovery by one injured in a fall caused by the step. The city, when it assumes to construct sidewalks, engages to do so in a reasonably safe manner, affording pedestrians reasonably safe conditions of travel; they at the time using due caution. The rule is fairly stated in Dill. Mun. Corp. § 1019, as follows: "A municipal corporation is not an insurer against accidents upon the streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient, we think, if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day." The same author lays down the further rule that this implied liability of the corporation is only on the ground of negligence. "The liability is not that of a guarantor of the safety of the traveler. The corporate authorities are only bound to use reasonable skill and diligence in making the streets and sidewalks safe and convenient for travel. It is under no obligation to provide for everything that may happen upon them, but only for such things as ordinarily exist, or such as may be reasonably expected to occur." Section 1015. It is argued for the city in this case that the plan of street improvements is one within the discretion of the council, and not to be interfered with by the courts. Some authority is cited from other states supporting this contention. But we rather incline to the view that, while the city governing body may exercise its...