Weick v. Dougherty

• Decision Date: 08 February 1906
• Citation: 139 Ky. 528,90 S.W. 966
• Parties: WEICK v. DOUGHERTY.
• Court: Kentucky Court of Appeals

90 S.W. 966

139 Ky. 528

WEICK v. DOUGHERTY.

Court of Appeals of Kentucky.

February 8, 1906

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by B. B. Dougherty against Theodore Weick. From a judgment for plaintiff, defendant appeals. Affirmed.

Byrne &amp Read and J. M. Dial, for appellant.

J. N Hutchins and R. C. Simmons, for appellee.

SETTLE J.

Appellee by this action in the Kenton Circuit Court sought to recover of appellant damages for the destruction of his wagon and its load of merchandise in a fire which consumed the latter's livery stable in the city of Covington. The complaint made in the petition was that appellant discovered the fire in time to have saved the wagon and contents, and by ordinary care could have saved, both after discovering the fire and before the property was consumed. By an amended petition, filed to make more specific the averments of the original petition appellee set forth in itemized form the articles of merchandise consumed with the wagon, and the value of each and also the value of the wagon, and in addition averred that appellant's negligence in permitting the destruction of his (appellee's) wagon and contents caused a temporary suspension of his business as a huckster, and a consequent loss to him of profits. The entire amount of damages claimed by appellee was $500. Upon the trial in the lower court appellee was awarded $362.45 damages by the verdict of a jury. Judgment was thereupon entered in his behalf for that amount, and the reversal of that judgment is sought by this appeal. The facts deducible from the evidence as a whole were as follows: Appellee, a huckster, residing at Williamstown, made stated trips to Covington, hauling such country products as appertained to his business. These he would dispose of in Covington, and there supply himself with a load of merchandise for sale or exchange upon his return to the country. The merchandise purchased in Covington would immediately be placed in his wagon, and the wagon, thus loaded, together with the horses used in pulling it, appellee had for several years been accustomed to leave at night, and until he got ready to return to the country, in appellant's livery stable and to his care. As appellee usually started home about 6 o'clock in the morning, for convenience his vehicle, by direction of appellant, was always placed on a wash floor on the west side of the stable about 30 feet from the door, and nearer thereto than any other vehicle. The wash floor sloped upward from the door and driveway, and in order to keep the wagon stationary while on the wash floor it was necessary to set the brake with which it was supplied. When ready to remove the wagon from the stable it was only necessary to release the brake, and the wagon, of its own weight and momentum, would run out on the street, the tongue being guided by the person releasing the brake. This manner of removing the wagon from the stable seems to have been known to, and was followed by appellant and his employés. On the day before the fire, appellee, as usual, left his wagon and team in appellant's stable about 4 o'clock p. m., and paid him in advance the usual price for having it and the horses cared for during the night. Appellee then returned to his home by rail, leaving the wagon to be carried to the country the next morning by his driver, who remained somewhere in the city that night. The fire by which appellant's livery stable and appellee's property were destroyed broke out about midnight, starting in an adjoining building, from which it spread to the stable. According to appellant's testimony, his servant, Glenn, with the aid of others, got all of the horses out of the stable,...