Reusch. v. Licking Rolling Mill Co.

OPINION OP THE COURT by JUDGE HOBSON -AFirRMING. Eleventh street in Covington, Ky., from Girard street eastward to the Licking river, is a down grade, and is sometimes ■used for coasting when there is enough snow or ice to permit. On January 5, 1904, the plaintiff was upon a large sled, with several other persons, coasting down the street about half past 8' o’clock, it being then dark. The defendant had left ■a large four-horse wagon upon the street a short distance east ■of the crossing, to which no team was hitched, and which was ■left there to stand over night. The sled ran under the wagon, aud plaintiff, was struck by it. Her teeth were knocked our, her chin was shattered, her nose, brow, and upper lip were cut, her back was sprained, and she received large and ugly scars upon her face, permanently disfiguring her. The street had been used for coasting for many evenings immediately preceding that upon which she was hurt, and was so used by a large number of persons that night. The plaintiff al» [372] leged in her petition the foregoing facts, and sought to recover of the defendant for her injuries. She also alleged that the defendant well knew, and could by the exercise of ordinary c-are have known, of the street for coasting on the previous evenings and on that evening, and that it negligently left the wagon in the street, thereby causing her injuries. The court sustained a demurrer to her petition, and she appeals. A city street is constructed for public travel. Any use of the street which renders it unsafe to the traveling public is a nuisance, for the traveling public have a right to pass back and forth upon it, and have a right to. presume that it will be reasonably safe for this purpose. The large sled, loaded with several persons, rushing rapidly over the ice down the declivity in the dark, endangered the safety of every traveler upon the highway in its course. The purposes for which the street was made and for which it was used were inconsistent with such use. The sled, loaded as it was,'and ran over the ice down the declivity, gathering momentum as it went, was per se a nuisance. One who crates a nuisance, and is himself injured thereby, can not recover. But it is insisted that the defendant is liable because of the allegation that it knew, and by the exercise of ordinary care could .have known, of the use of the street for coasting. A pleading must be taken against the pleader, and, taken all together, the allegations of the petition amount only to a charge that the defendant, by ordinary care, anight have known the facts. In other words, the meaning is that defendant could, by ordinary care, have known the facts, and therefore knowledge of them is to be imputed to it, for, if actual knowledge of the facts was meant to be chai’ged, the allegation that the defendant could by ordinary care have [373] known them was meaningless. Some force must be given all parts of the sentence, and it is a fair presumption that a pleading is sworn to, in its milder sense, for the pleader selects his own language, and will naturally make it as strong as he can truthfully. The petition, as a whole, is bottomed on negligence, or the defendant’s failure to exercise ordinary care to know the facts and remove the wagon from the street. But the defendant was under no obligation to the plaintiff to exercise care for her protection. It is not charged that the wagon was placed at a point at which the defendant knew the street was used by those coasting on it, or that the defendant knew that, to leave the wagon where it was, would endanger the safety of those coasting on the street. The petition is rested on the idea that the defendant negligently placed the obstruction in the street, and, while it would be.liable for this to those using the street for a proper purpose and in the proper way, it is not liable to one improperly using the street. We are referred to a number of authoritiesi holding that, if a man knows that trespassers are using his property, yet if with such knowledge, he places a dangerous obstruction in their path, he is liable for an injury to them when they pass along in the dark and are injured without knowledge of the danger. But these cases are not in point, for the reason that it is not averred that the defendant knew that the wagon was standing where it would endanger those coasting on the street, nor is it sufficiently averred that the. defendant knew, in fact, of the use of the street for coasting at the time the plaintiff was injured. No opinion is therefore intimated as to whether the line of authorities referred to would apply to a case like this. Judgment affirmed.