City of Glasgow v. Gillenwaters

[143] Opinion of the court by JUDGE O’REAR Affirming. Appellant city, by ordinance, let tlie contract for tlie improvement of one of its streets. Rians and specifications were included in' the agreement executed between the city and the contractor. In doing the work the street was so torn up as to render it unsafe for travel. The contractor, by his servants, caused a barbed wire to be strung from a telephone pole standing at the edge of the pavement to the opposite side of the street, to prevent travel over the portion undergoing repairs. The wire was about five feet from the ground. While the street and the wire were in this condition, appellee attempted to go across the street, and, in a course theretofore customarily used by pedestrians going to and from the railroad depot in that vicinity, ran into this wire, severely cutting his lips and gums. ETad he kept to the sidewalk, he could have avoided the obstruction. The injury occurred in the night time. It is claimed for appellee that there was neither light nor other appropriate warning of this dangerous arrangement. In this, suit by appellee against the city for damages for this injury, it pleaded, among other defenses, that it had let this contract to an independent contractor, and was not responsible for his negligence; that it had no control over the manner of his executing the work; that the contract, in or of itself, did not necessarily involve the dangerous situation by which appellee was injured. A demurrer was sustained to this plea. The correctness of this ruling is the principal question involved in this appeal. The city is required by statute (section 3643, Kentucky Statutes) to keep its streets in a reasonably safe condition for travel and free from obstructions, and it would seem that such would be its duty independent of such statute. Fugate v. City of Somerset (14 Rep., 809) 29 S. W., [144] 970; City of Covington v. Bryant, 7 Bush, 349. The question then arises, can a city dispense with this duty to the public by divesting itself of authority or control over its .highways? In Storrs v. City of Utica, 17 N. Y., 109, 72 Am. Dec., 437, where the dty had let out the building of a sewer by contract, and the work was left open in the night time without guards, lights or warnings, and plaintiff drove into it, this same defense was attempted. The court said: “Although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on. The performance' of the work necessarily renders the street unsafe for nighr travel. This is a result which does not at all depend on the care or negligence of the laborers employed by the contract- or. The danger arises from the very nature of the improvement, and if it can be averted only by special precautions, such as placing guards or lighting- the street, the corporation which has authorized the improvement is plainly bound to take those precautions. The contractor may veimproperly be bound by his agreement not only to construct the sewer, but, alsd to do such other acts as are necessary to protect travel. But a municipal corporation, can not I think, in this way, eifliei avoid indictment on behalf of the public, or its liability to individuals.” This is followed and sustained by Mayor, etc. v. O’Donnell, 53 Md., 110, 36 Am. Rep., 395; Dill. Mun. Corp., sections 791-793; City of Logansport v. Dick, 70 Ind., 65, 36 Am. Rep., 166. In the last-named case, in denying the defense involved in the plea of independent conlractor, the supreme court of Indiana said: “It seems to us that in view- of the exclusive power conferred and of the correlative duty necessarily imposed upon the appellant over the streets, alleys, and highways within its corporate limits, in and by the legislation of this [145] State providing for tlie incorporation of cities, the appellant could not and ought not to be allowed to avoid the imperative duty which it owed to the public to keep its streets, alleys and highways in a safe condition for use in the usual manner by travelers, nor to escape responsibility for its neglect or failure to perform such duty, upon the plea that it had entered into a contract with another person for the performance of the work, which rendered such use of the street, alley or highway unsafe or dangerous to the traveling public. . . . The appellant could not, by any contract it might make, avoid its liability to third persons for injury or death resulting from a breach of its duty in the care and control of its streets.” We are of opinion that the court properly sustained the demurrer. There was evidence sufficient to support the finding' of the jury +hat there was no light nor other warning at the point where this wire was placed. It of itself was a very dangerous obstruction, constituting a nuisance, and should not have been allowed by the city. Appellant asked the court to instruct the jury that if appellee unnecessarily left the sidewalk, which was safe, and, without good or sufficient reason, walked or ran into the wire across the street ,and was injured, they must find for the defendant. This instruction was refused, and the refusal is made the basis of a complaint upon this appeal It was said in the case of City of Lexington v. Auger, 4 Ky. Law Rep., 24: “It is true, there was ample room on the sidewalk for the traveler, and he would have to main1 a diversion from the main path to reach the danger; still he had the right to use any part of the street, for the purpose of. traveling.’-' City of Olathe v. Mizee, Kan., 435. 29 Pac., 754, 30 Am. St. Rep., 308. In the last-named .case it [146] nas said: “A divergence or departure from tlie crosswalks is not an evidence of want of care. Pedestrians have a right to cross a street at any point, and it is a common practice to do so.’’ In Brusso v. City of Buffalo, 90 N. Y., 679, ii was held: “A person desiring to cross the street, either in the night time or in the day time, is not confined to a. crossing. He has a right to' assume that all parts of the street intended for tiavel are reasonably safe; and if in the night time he desires to cross front one side to the-other, and knows of no dangerous excavations in the street, or other obstructions, he may cross at any point that suits his convenience, without being liable to imputation of ‘negligence.” This doctrine seems to be abundantly sustained and inherently sound. The instruction was properly refused. The verdict of the jury -and the judgment for appellee of $220 is not excessive, and is sustained by the law and the evidence. Judgment affirmed, with damages.