Zehe's v. City of Louisville

— 624 — Opinion by Judge Lassing Affirming. This was an action by ~W. E. Zehe’s administrator against the city of Louisville to recover damages for the death of an infant 9 years of age who was drowned by the overturning of a wagon in a creek near the mouth of a sewer in said city. Plaintiff alleged that, by reason of the faulty construction of the sewer at the point where it emptied into the creek a deep hole had been made in the creek and that the driver of the wagon in which the boy was riding, not knowing of the presence of said hole, drove his horse into same, and the wagon was overturned, and the boy was drowned. The city’s plea was a traverse and a further plea of contributory negligence. The case was tried by a jury before a special judge, and, at the conclusion of the testimony, a peremptory instruction was given to find for the defendant, which was done. This was in May, 1900. Motion and grounds were filed for a new trial on May 10, 1900. On October 10, 1903, the motion for a new trial was overruled and plaintiff given 60 days to prepare and tender his bill of exceptions. .On December 7, 1903, plaintiff by counsel, tendered his bill of exceptions and moved the court for leave to file same, to which the defendant objected. This court thereupon gave plaintiff 30 days ’ additional time in which to complete the bill of exceptions. Upon January 7, 1904, upon motion of plaintiff, he was given 30 days’ additional time in which to complete and file his bill of exceptions. On September 25, 1905 the following order was made: “The court declines to sign the bill of exceptions, because the stenographic transcript of the evidence was not tendered within the thirty days allowed to complete his bill, thereby showing the court the evidence on the trial. [Signed] John S. Jackman, Special Judge.” The record shows that the evidence given on the trial of this case was taken by an official — 625 — court stenographer, or reporter The bill of evidence tendered on December 7, 1903, is not a stenograpnic report of the proceedings had on the trial, but purports to be a statement by two witnesses as to what took place during the trial, and we think the court properly refused to approve same, when the record had been taken and preserved by an official reporter for the court. Plaintiff should have had this stenographic report transcribed, and presented it as his bill. The court, on plaintiff’s own motion, extended the time until January 7, 1904, in order that he might complete his bill. And on January 7, 1904, the court again extended the time for 30 days for plaintiff to complete his bill, and the plaintiff having failed and refused to complete his bill, the court, on September 25, 1905, refused to sign the bill tendered, and plaintiff appeals. The first question for determination is: Is there any bill of evidence in this case to be considered by this court upon review, and, if not, did the pleadings support the judgment? Section 1019a, Ky. St. 1903, provides for the appointment of an official court stenographer for courts of continuous ——--. And article 4 of said section provides for the appointment of a special reporter when the regular reporter for any reason does not serve. And article 8 thereof provides that the transcript or duplicate made by the reporter, and filed in the clerk’s office, when certified to be correct by the court, may be used in the Court of Appeals as part of 'the record in the action or prosecution in which the notes from- which it has been transcribed were made. It appears from the record that the time for preparing the bill of exceptions was extended by the court in order to give plaintiff an opportunity to secure and file a transcript of the evidence offered during the trial. He was first given 60 days, then 30 days additional, and then 30 days more, and having — 626 — failed to produce same within the 120 days given .him, the judge having waited more than 8 months after the 120 days had expired, refused to sign the bill which plaintiff had tendered as a bystander’s bill. The reason assigned for refusing to sign the bill is that it is not correct. We are of opinion that under this state of facts the court was warranted in refusing to sign the bill tendered, and as plaintiff failed to present a proper bill within the time given by the court, Qr at all, he cannot complain of the action of the trial judge. For even had he tendered a bill correct in every particular after the expiration of 120 days from the time the judgment became final, the court would have had no right or power to sign same. Although plaintiff offered to file what he termed a bystander’s bill, it was evidently but an imperfect statement of part of the testimony offered during the trial, and was so regarded, not only by the court, but by plaintiff’s attorney,for the court, on plaintiff’s motion, extended the time 60 days to enable him to complete his bill. The record does not show that the bill tendered was ever filed, and in fact it was not. Section 334 of the Civil Code of Practice provides: “The party objecting must except when the decision is made, and time may be given to prepare the bill of exceptions, but not beyond a day in the succeeding term fixed by the court.” In the case of Cain v. Cain, 12 Ky. Law Rep. 635, the court held that the time for filing a Bill of exceptions in the Jefferson court of common pleas cannot be extended beyond 120 days after the order overruling the motion for a new trial. In that case the' motion for a new trial was overruled October 3, 1885, and the bill of exceptions was not signed until February 13, 1886, which was 130 days after the motion for a new trial was overruled. The court held that, ai: though the time was extended by the successive orders of the court, the bill could not be considered. — 627 — No excuse appeared in the record for it not having 'been signed sooner. In the case of Combs v. Combs, 41 S. W. 7, 19 Ky. Law Rep. 439, the court held that a bill of exceptions which was filed pursuant to an order of the court granting further time to’ a date in the term later than the succeeding term after the judgment became final, cannot be considered upon appeal. And if the pleadings are sufficient to sustain the judgment of the court below, the judgment must be affirmed. See Johnson v. Stivers, 95 Ky. 130, 23 S. W. 957, and Bannon v. Moran, 12 Ky. Law Rep. 989. In the case of City of Covington v. Wilson, 23 Ky. Law Rep. 1722, this court held, as stated in the syllabus: “In courts of continuous session a bill of exception must be filed within sixty days after the judgment becomes final, unless the court, on motion made within that time, gives further time within which to file same. A bill of exceptions tendered more than sixty days after the judgment became final, was properly refused by the court.” In the case before us the judgment became final October 10, 1903, and 60 days was given in which to prepare and tender the bill. On December 7, 1903, 30 days’ additional time was given, which expired on January 6, 1904. On January 7, 1904, 30 days’ additional time was given, which expired February 7, 1904. Under the Code, and under the ruling laid down in the above cited cases, no additional time could have been given by the court. The court had given him all the time which they could allow him, and appellant, within that time failed -to have filed what he offered as for his bill filed. It cannot, therefore, be considered as a part of the record in this case. In the case of Early v. Sutton, 74 S. W. 238, 24 Ky. Law Rep. 2381, this court held that where the record fails to show that time was given to’ appellant at the term at which his motion for a new trial was overruled to prepare and tender his bill of evidence and excep — 628 — tions at the succeeding’ term of the court, as provided by section 331 of the Civil Code of Practice that this court cannot legally consider upon appeal that part of the record which purports to be a bill of exceptions. The record shows that the trial court extended to the appellant plaintiff every opportunity within its power to file its bill of exceptions. The maximum time that can be given under the Code is 120 days from the time the motion for a new trial is overruled. This full time was given plantiff, and he failed to complete his bill of exceptions within said time, and failed to have even his incomplete bill filed within said time. And after the expiration of the 120 days, the trial judge had no right to sign said ' bill, and properly refused to do so. The only question remaining for consideration is: Do the pleadings support the verdict? Appellant practically admits in his brief that if the bill of evidence is not admitted as part of the record, and con-' sidered on this appeal, that his appeal is lost. The answer in the case is a traverse, and a plea of contributory negligence. The petition itself is defective, and the trial court should have sustained a demurrer thereto, for the reason that it fails to charge that .the said defendant had notice of the dangerous condition of the creek at the mouth of the sewer, or, by the exercise of ordinary care, could have discovered its said dangerous condition or that it had remained in said condition for a length of time sufficient to charge the city with notice of such condition. These are essential allegations, which would have to be alleged and proven in order to entitle the plaintiff to recover. Our courts have gone quite far in holding municipal corporations to a strict responsibility on account of accidents caused by their failure to keep their streets and sidewalks in a proper and safe condition, but we know of no case in which it has ever been held that a municipal corporation is required to — 629 — keep a creek or waterway running through same in even a reasonably safe condition for public travel. A creek is not a highway, and the same rule of law which would apply in case of accidents occurring on streets or sidewalks of a city could not be applied to an accident occurring in a creek by reason of a latent defect therein, such as set up in this case. The city owed appellant no duty in reference to the creek. And appellant does not charge appellee with a breach of any duty in reference to the creek, but shows in his pleadings clearly that the accident which resulted in the death of his intestate was due solely to the negligence of the driver of the wagon, and in no wise to the fault or failure of the city to discharge any duty ■which it owed to the decedent. The judgment is affirmed.