Webster v. Chesapeake & O. Ry. Co.

• Decision Date: 12 December 1907
• Parties: WEBSTER v. CHESAPEAKE & O. RY. CO. ET AL.
• Court: Kentucky Court of Appeals

105 S.W. 945

WEBSTER v. CHESAPEAKE & O. RY. CO. ET AL.

Court of Appeals of Kentucky.

December 12, 1907

Appeal from Circuit Court, Lewis County.

"Not to be officially reported."

Action by John M. Webster against the Chesapeake & Ohio Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Allan D. Cole, for appellant.

Lewright Browning, W. H. Wardsworth, and Worthington & Cochran, for appellees.

CARROLL J.

The freight depot of appellee at Vanceburg is situated near the corner of Third and Main streets. In hauling freight to and from the depot it is necessary to cross the sidewalk crossing constructed on the side of Main street nearest the depot. Appellant, who is a drayman, was driving a dray loaded with 12 bales of hay from the depot. He was seated on top of the bales, with his feet dangling on one side. In going out to Main street it was necessary that he should cross over the sidewalk crossing, as well as a gutter 14 inches deep that ran along the edge of the sidewalk and between it and Main street. The negligence complained of consists in the failure of appellee company to keep the sidewalk crossing between Main street and its property, and over which vehicles passed from Main street to the freight depot, in good repair; it being charged that the stones were carelessly and negligently placed and suffered to so remain on the crossing and that "one of the wheels of his dray came in contact with and went down into an obstruction, to wit, said excavation depression, or hole in said sidewalk or crossing, and the other went upon a large freestone rock on said crossing or sidewalk located as aforesaid above said obstruction, as well as above the grade of the adjoining gutter, by reason whereof he was without any fault on his part caused to be thrown from the dray and injured quite severely." In an amended petition it was charged that the appellee company constructed the sidewalk under an ordinance of the city of Vanceburg providing: "It is hereby made the duty of each and every person owning lots or real property fronting or abutting upon any one of the public streets and thoroughfares of this city other than alleys and lanes, to at once construct and in the future maintain in a suitable state of repair a sidewalk or pavement along, by, and in front of his, her, or their said lot or property, wherever and so far as the same so fronts or abuts upon said public street." The answer, after denying generally the averments of the petition, pleaded contributory negligence on the part of appellant. Upon the conclusion of the evidence for appellant, the court instructed the jury to return a verdict for appellees.

The evidence introduced for appellant shows that he had been engaged as a drayman for several years previous to the accident complained of; that he went over this crossing and gutter daily, and, of course, was entirely familiar with the construction, location, and defects, if any, in the sidewalk gutter, and crossing. Whether the lurch that threw him from the dray was caused by the wheels of the dray when it fell into the gutter, or by reason of the fact that one of the wheels dropped into the drain or depression in the sidewalk crossing at the same time that the other wheel struck one of the rocks in the crossing, is involved in great doubt. Some of appellant's witnesses say that he was not thrown from the dray until one of the wheels fell into the gutter. There was also evidence tending to show that he was riding in a careless and imprudent manner. But, waiving these questions the principal defense relied on by appellee is that it is not liable for injuries caused by defects, if any, in the crossing. If this question is disposed of in its favor, it is not necessary to consider the other defenses.

There is, of course, no...