Tudor v. City of Louisville

• Decision Date: 28 November 1916
• Citation: 189 S.W. 456,172 Ky. 429
• Parties: TUDOR v. CITY OF LOUISVILLE ET AL. [a1]
• Court: Kentucky Court of Appeals

189 S.W. 456

172 Ky. 429

TUDOR v. CITY OF LOUISVILLE ET AL. ^[a1]

Court of Appeals of Kentucky.

November 28, 1916

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Willie Ann Tudor against the City of Louisville and others. From judgment for defendants, plaintiff appeals. Affirmed.

Henry J. Tilford, of Louisville, for appellant.

Geo Cary Tabb and Pendleton Beckley, both of Louisville, for appellee City of Louisville.

O'Neal & O'Neal, of Louisville, for appellee F. W. Woolworth Co.

THOMAS J.

At about 5 o'clock on the afternoon of March 17, 1913, the appellant, Willie Ann Tudor, was coming out of the store of F. W. Woolworth Company, situated on the west side of Fourth street, between Green and Walnut streets, in the city of Louisville, Ky. and after getting upon the walk in front of the store she slipped and fell, sustaining injuries, to recover damages for which she filed this suit against the city, the F. W. Woolworth Company, and the McDowell estate. The place where her foot began to slip was upon an iron grating some 3 or 4 feet wide, and occupying the space from the wall of the store out to the asphalt portion of the walk. The iron grating has small, circular eyes in it which are filled with glass so as to permit light into the basement of the building, such as are commonly used upon sidewalks for that purpose. It is alleged that the grating was maintained by the owner of the building, the McDowell estate, and for the use of the occupant thereof, F. W. Woolworth Company, and that the city of Louisville allowed and permitted it to be maintained as a portion of the sidewalk, that it had been constructed for many years, and, because of the constant traffic, had become worn and exceedingly smooth, whereby it was rendered slick and dangerous. In an amended petition plaintiff alleged that the city did not construct the grating originally, but that its dereliction consisted in allowing it to be maintained as a part of the walk in the condition described. A written answer was filed by each of the defendants, denying the allegations of the petition and affirmatively pleading contributory negligence. There was also an order, controverting the pleadings of plaintiff of record. A trial resulted in a verdict for each defendant which was rendered upon a peremptory instruction from the court directing it, and, to reverse that judgment, this appeal is prosecuted.

Before considering the merits of the case, it should be stated that no appeal has been prosecuted from the judgment in favor of the McDowell estate, and we fail to find any testimony in the record showing that the F. W. Woolworth Company even occupied the building, much less that the grating was maintained for its benefit as a tenant either of the building or of its basement. As the pleadings put these facts in issue, it was incumbent upon the plaintiff to offer some proof in support of these necessary facts to render that defendant liable. As this was not done, it is clear that the judgment must be affirmed as to the appellee F. W. Woolworth Company.

The rule in this state, as established by an unbroken line of cases, is that a municipality must exercise ordinary care to keep and maintain its streets and sidewalks, after they have been taken over by the city, in reasonably safe condition for the character of travel for which they are intended, and if it should fail to do this, it will be liable to the one suffering damages thereby. West Kentucky Telephone Co. v. Pharis, 78 S.W. 917, 25 Ky. Law Rep. 1838; City of Harrodsburg v. Abram, 138 Ky. 157, 127 S.W. 758, 29 L.R.A. (N. S.) 199; City of Covington v. Belser, 137 Ky. 125, 123 S.W. 249; City of Louisville v. Haugh, 157 Ky. 643, 163 S.W. 1101; Gnau v. Ackerman, 166 Ky. 258, 179 S.W. 217; Eagan v. City of Covington, 166 Ky. 825, 179 S.W. 1026, and cases referred to therein. It is neither a guarantor of the perfect condition of the streets and sidewalks nor of the safety of the traveler on either. Elam v. City of Mt. Sterling, 132 Ky. 657, 117 S.W. 250, 20 L.R.A. (N. S.) 512; Varney v. City of Covington, 155 Ky. 662, 160 S.W. 173; City of Ashland v. Boggs, 161 Ky. 728, 171 S.W. 461, Ann.Cas. 1916B, 1005.

The negligence for which the municipality may be rendered liable consists of acts of misfeasance and nonfeasance. The former includes faulty construction of the street or sidewalks so as to render them dangerous for travel, while the latter consists of a failure to repair the street or sidewalk after construction, and after becoming unsafe. Of the latter class of negligence, if any, is the one to which the instant case belongs, and the rule in this state is firmly settled that in order to fasten upon the municipality liability for an omission to repair the unsafe condition of the street or sidewalk, it must have either actual or constructive notice of the defect, and such constructive notice is established when the evidence shows that the defective condition, although not actually known by the city, could have been known by the exercise of ordinary diligence and care on its part. If the defect or obstruction had existed for such a length of time as to have afforded to the authorities of the city a reasonable opportunity to have discovered it, it would be charged with constructive notice. City of Louisville v. Lenehan, 149 Ky. 537, 149 S.W. 932, Ann.Cas. 1914B, 164; City of Ashland v. Boggs, 161 Ky. 728, 171 S.W. 461, Ann.Cas. 1916B, 1005; Bosler Hotel Co. v. Speed, 167 Ky. 800, 181 S.W. 645.

Applying these legal principles to the facts of this case, we find that there is no testimony in the record as to who constructed the iron grating upon which plaintiff slipped, nor is there any testimony to show how long it has been constructed. There is some testimony looking to the establishment of the fact that it is now somewhat smoother than it once was. There is no evidence to show that this particular character of grating is in any wise inherently dangerous, nor is there any evidence to show any holes by which plaintiff was tripped or in which her foot became hung, or any obstacle over which she stumbled. It is true that she testifies that some considerable time after the accident, and after she had partially recovered from her injuries, she observed that some of the glass in the iron frame was loose, but to what extent is not shown, and there is no evidence authorizing the conclusion that such condition was in any manner dangerous, nor is it shown that that condition, if it did exist, would cause the grating to be either smoother or slicker than if it did not exist. According to the testimony, which includes a photograph of the walk at that point, the iron grating is upon a perfect level with the remainder of the walk, and there is no appreciable aperture between the two. It is true that a witness testifies that some time previous to plaintiff's fall the witness had slipped upon the pavement on that same side of the street, but the places where these two accidents happened are not shown to be identical, nor does the record show any investigation concerning the facts relative to the accident to the witness, so that this testimony sheds no light upon the issues involved here, even if it was competent, which clearly it was not.

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