Watkins' Administrator v. City of Catlettsburg
| Decision Date | 25 March 1932 |
| Citation | 243 Ky. 197 |
| Parties | Watkins' Administrator v. City of Catlettsburg. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Court of Appeals determining whether plaintiff has cause of action will accept plaintiff's evidence and all reasonable inferences.
2. Municipal Corporations. — Word "protect," though carrying idea of making safe, as regards city's duty to protect persons using streets, is synonym of terms "guard" or "notify."
3. Municipal Corporations. — City must employ means necessary to make streets reasonably safe and use barriers sufficient to give warning of danger.
4. Automobiles. — City need not make special provisions for safety of automobiles as different class of travel from that of ordinary travel by public.
5. Automobiles. — City held not required to maintain guard at end of street terminating at juncture with street paralleling river, sufficient to prevent automobiles turning at juncture from going over embankment.
Facts disclosed motorist approached embankment on street terminating at juncture with street running parallel to the river, and that, on making left turn at a curve somewhat less than a right angle, automobile approaching on street parallel to river and at high rate of speed caused motorist to swing outward to avoid collision and in so doing automobile crossed eight-foot shoulder between street and river and went over embankment.
Appeal from Boyd Circuit Court.
WAUGH & HOWERTON and MARTIN T. MORAN for appellant.
GEORGE F. GALLUP and MARTIN & SMITH for appellee.
Affirming.
In its essence, this case presents the question of whether the duty which a municipality owes to the traveling public is one of notification or fortification against danger. In its particularity, the question is whether the city of Catlettsburg owed a duty to place a barrier at the end of a street of sufficient strength to have prevented an automobile being driven off into the Ohio river by reason of which a man was drowned.
The river flows westwardly by that city. Division street, running north and south, terminates at the juncture of Front street, paralleling the river, thereby forming an elbow, which is something less than a right angle. Both streets were paved with brick. There was no kind of barrier, railing, or curbing along the bank of the river. At the end of the paving of Division street there was an earth shoulder, level with it, from two to eight feet in width and then a precipitous embankment. Ordinarily the water is some distance down from the top of the bank. On May 7, 1929, the river was at a very high stage and came within a few feet of the top of the bank at the end of the street. About noon that day C.E. Watkins, with his mother and father in his automobile, drove down Division street to see the high water, and just as he was turning to the left to go down Front street another automobile came suddenly around the corner at a rapid speed and turned to its right to go out Division street. It swung out beyond the center of the corner, and, in order to avoid a collision with it, Watkins was forced, as he testified, to turn his car quickly to the right, and it went off the end of Division street over the river bank and plunged in the water, although he applied his brakes and used every effort to stop the machine. He jumped out and his mother was rescued from the water, but his father was drowned within the automobile. The street was level and there is no claim that the grade of the street had anything to do with the accident. It is apparent that the driver had ten or twelve feet within which to stop his car going straight ahead when he met the other machine at the corner. There is evidence tending to show that if there was in fact any other automobile involved it did not cause Watkins to change his course and that something went wrong with his machine. For the purpose of the decision, we accept, however, the plaintiff's evidence and all reasonable inferences.
The administrator of the estate of the father, A.H. Watkins, brought this suit against the city of Catlettsburg for damages, alleging negligence on its part in failing to guard the end of the street by maintaining a barrier to separate it from the abrupt descent or declivity and to prevent automobiles or other vehicles using the street from going over the bank. The case was submitted to a jury, which returned a verdict for the defendant.
It appears that the court committed an error to the plaintiff's prejudice in the instructions; but, since we conclude that the motion of the city for a directed verdict should have been sustained, we confine the opinion to that point.
Of course, there can be no negligence if there was no duty owing the plaintiff under the circumstances. With respect to the duty which a municipality owes to those using its streets, it has often been stated that that duty is to use ordinary care to warn and protect persons against injury who themselves are using ordinary care for their own safety. While the word "protect" carries the idea of preserving in safety or making absolutely safe, the sense in which it has been used in thus defining a city's duty is rather that of a synonym of "guard," "warn," or "notify." It is true that in relation to defects or obstructions in the streets themselves a responsibility may arise different from a case involving danger outside of the traveled way. The question of negligence is resolved into one of reasonably anticipated consequences, and the duty is to use such means as may be necessary to prevent those consequences. The city is required to use or employ whatever means may be necessary to make its streets...
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