Walter v. Louisville Ry. Co.

• Decision Date: 20 November 1912
• Citation: 150 Ky. 652,150 S.W. 824
• Parties: WALTER v. LOUISVILLE RY. CO.
• Court: Kentucky Court of Appeals

150 S.W. 824

150 Ky. 652

WALTER v. LOUISVILLE RY. CO.

Court of Appeals of Kentucky.

November 20, 1912

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

Action by George Walter against the Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

O'Doherty & Yonts, of Louisville, for appellant.

Fairleigh Straus & Fairleigh. Alfred Selligman, and Howard B. Lee, all of Louisville, for appellee.

MILLER J.

On February 17, 1910, appellant, while acting as driver of a delivery wagon for the Great Atlantic & Pacific Tea Company stopped the wagon on the south side of Walnut street, in Louisville, between Twenty-First and Twenty-Second streets, for the purpose of making a delivery of goods. He left his wagon unattended on the street, and disappeared. In his absence, defendant's snowplow approached, going eastwardly, and clearing the track of a heavy snow. Seeing that the snowplow could not pass the wagon in the position it was standing, Shelton, one of the defendant's men on the plow, got down, took hold of the bridle of the horse, and led the horse and wagon from the south side of the street across to the north side of the street, where he left them. In crossing the street Shelton passed over or through one, and possibly two, piles or ridges of snow that had been made by the plow in throwing the snow away from the car tracks upon either side. When plaintiff came out of the house where he had delivered the merchandise, and saw his wagon on the opposite side of the street, he crossed over and got into it; but, when he started, the kingbolt which held the front axle to the body of the wagon broke, and plaintiff was thrown to the ground, causing a fracture of his shoulder. He brought this action for damages, alleging that his injury was caused by the gross negligence of defendant's agents and servants in moving the wagon, whereby they broke the kingbolt. The case having been tried out, the jury returned this verdict: "We, the jury, do not find the defendant guilty." And, the court having entered a judgment for the defendant upon the verdict as returned, the plaintiff prosecutes this appeal.

The following grounds are relied upon for a reversal: (1) That the court erred in giving instruction No. 1; (2) in instructing upon contributory negligence; (3) in refusing to give an instruction asked by the plaintiff; (4) that the verdict was not sufficient to support the judgment entered in defendant's favor; and, (5) the misconduct of juror Gunther.

1. Instruction No. 1, given by the court, reads as follows: "If the jury believe from the evidence that the defendant's agent, Shelton, negligently moved the wagon mentioned in the evidence and thereby broke the kingbolt or caused it to break, and thereby caused the wagon to fall apart, and that the plaintiff was thereby injured, then the law is for the plaintiff, and the jury should so find, unless they believe from the evidence that the plaintiff was himself negligent as submitted in the third instruction." The second instruction is the converse of the first; and, as there is no criticism of the other instructions, it is unnecessary to further notice them. As a substitute for instruction No. 1, the plaintiff asked the court to give the following instruction, to wit: "The court instructs the jury that it appears from the evidence in this case that the defendant's agent on the occasion in the evidence referred to took possession and control of the horse and wagon in the evidence referred to without the plaintiff's consent, and in his absence and moved it from the south to the north side of Walnut street. If, therefore, the jury shall believe from the evidence that while the wagon was in the possession and under the control of the defendant's agent in moving it across Walnut street it was injured, and that by reason of the injuries so inflicted upon it the wagon pulled apart when the plaintiff boarded the same and attempted to drive it from the point to which it had been taken by the defendant's said agent, and the plaintiff was thereby thrown or caused to fall from the wagon and was thereby injured, the law is for the plaintiff, and the jury should so find."

Appellant's theory of the case, as presented by the instruction offered, was that Shelton unlawfully or tortiously took possession of appellant's horse and wagon without appellant's consent; and, if he injured the wagon while moving it, appellee was liable absolutely, and must answer for the injury whether negligent or not. Appellant's counsel likens this case to a case where one unlawfully or tortiously obtains possession of another's boat and loses it in a storm, and insists that in such a case, no matter how careful he may have been in its management, and no matter if the loss was occasioned by the act of God, nevertheless, because of the tortious and unlawful possession, he will be liable at all events. In other words, a tortious departure from the terms of the contract by misappropriating the property, or misusing it, renders the bailee liable. Van Zile on Bailments and Carriers, § 55. There can be no doubt that a bailee is liable in tort for injury to property bailed occurring during a use of it by him, or by others with his consent, which was neither expressly nor impliedly authorized by the contract of bailment, even though such injury was the result of accident, and not of negligence in the manner in which the property was used. Palmer v. Mayo, 80 Conn. 353, 68 A. 369, 15 L. R. A. (N. S.) 429, 125 Am. St. Rep. 123, 12 Ann. Cas. 691. In making this contention, however, we think appellant has misconceived the legal effect of appellee's act in removing the wagon to a position across the street. Shelton and his coemployés upon the car which drew the snowplow contended that the plow could not pass appellant's wagon by reason of the position in which it stood, and that he only removed it for the purpose of enabling the snowplow to proceed on its journey, and continue its work. On the other hand, appellant attempted to show that the car could have passed by merely drawing in the plow, which could have been done by a simple use of the machinery. However that may have been, the presence or absence of sufficient room for the plow to pass cannot affect the rights of the parties, as we understand the law of the case.

In defining a nuisance, and in saying who may abate it, Blackstone says: "Whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated--that is, taken away or removed--by the party aggrieved thereby, so as he commits no riot in the doing of it. *** If a new gate be erected across the public highway, which is a common nuisance, any one of the king's subjects passing that way may cut it down and destroy it. And the reason why the law allows this private and summary method of doing one's self justice is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice." 3 Com. 5. And in a note by Lewis to the foregoing text it is said: "If a house be built across a highway, any person may pull it down; and it is said that he need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate, illegally fastened, may have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. 2 Salk. 458." And in his note to 4 Blackstone's Com. 167, Lewis further says: "Independently of any legal proceedings, it appears that any person may lawfully abate a public nuisance, at least if it be placed in the middle of a highway and obstruct the passage of his majesty's subjects (Hawk. b. 1, c. 75, S. 12); but, though a party may remove the nuisance, yet he cannot remove the materials or convert them to his own use (Dalt. c. 50); and so much of the thing only as causes the nuisance ought to be removed, as, if a house is built too high, only so much of it as is too high should be pulled down. 9 Rep. 53. God. 221. 2 Stra. 686."

The rule is that, if one places an obstruction in a public street, any one who is incommoded thereby may remove it; but, unless he has occasion to make use of the highway, he must leave the public injury to be redressed by the public authorities. Gates v. Blincoe, 2 Dana, 158, 26 Am. Dec. 440; Gray v. Ayres, 7 Dana, 375, 32 Am. Dec. 107. It is the existence of an emergency which justifies the interference of the individual; and, generally speaking, whenever a public nuisance obstructs the exercise of a private right, the party hindered may abate the same, exercising due care in doing so. Instruction No. 1, of which complaint is made, followed the rule by recognizing appellee's right to move the wagon out of the way of the street car, and also by recognizing appellant's right to recover, if Shelton was so negligent in removing the wagon as to break the kingbolt, and thereby cause the wagon to fall apart and injure appellant.

2. It is insisted, however, that the court erred in instructing the jury upon the subject of contributory negligence, as it did in giving instruction No. 1, when there was no evidence of any negligence upon the part of plaintiff. While we agree with appellant that there was no negligence shown upon appellant's part, nevertheless, if the instruction in this respect could not have misled the jury, there is no reversible error. In Shellman v. Louisville Railway Co., 147 Ky. 526, 144 S.W. 1060, we said "Complaint is also made because the court gave an instruction on...