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Ky.)

McWILLIAMS v. KENTUCKY HEATING CO.

25

2. GAS 17 - GAS COMPANIES - RIGHTS IN CARROLL, J. This appeal is prosecuted STREETS-'ORDINARY CARE.'

by the appellant from the judgment of the Where a contract between a turnpike company and a gas company, granting the latter lower court, directing the jury to return a the right to lay pipes in the turnpike, provided verdict in favor of the appellees in a suit that the gas company should keep the pipes in he had brought against them to recover damproper condition, and so as not to interfere with ordinary travel,' such condition of the contract ages for personal injuries. The appellant, meant that the gas company undertook to exer- at the time he sustained the injuries comcise ordinary care to keep and maintain its plained of, was employed by Jefferson counmains so as to have the road from day to day in such condition that it would be reasonably ty as the engineer of a steam roller in the safe, considering the usage and travel which it reconstruction and maintenance of a county might be reasonably anticipated it would be road of Jefferson county known as the Eighsubjected to from day to day;. "ordinary care” | teenth Street road. The steam roller being to maintain a place or thing in safe condition under such a state of facts being a variable operated by appellant weighed about 26,000 and not a stationary degree of care.

pounds. It was so constructed that there [Ed. Note.-For other cases, see Gas, Cent. was one small roller or wheel in front and Dig. 8.14; Dec. Dig. Om 17.

two large rollers or wheels in the rear. For other definitions, see Words and Phrases, These large rollers or wheels in the rear First and Second Series, Ordinary Care.] 3. Gas w18–GAS COMPANIES—RIGHTS IN holes were for the purpose of inserting steel

had each 24 holes in their surface. These STREETS-DUTY OF CARE.

Where a gas company occupies a public spikes about four inches long, which spikes street with its main, whether such street be could be placed in the holes and taken out owned by a turnpike company or be a public at the pleasure of the person in charge of highway, such gas company, whether under contract with the turnpike company or its im- the machine. When it was desired, in the plied obligation to the public, is under duty to reconstruction of a macadam road, to tear maintain its main in such manner as to have the road reasonably safe from day to day, con- up the roadbed, these spikes were placed sidering the usage to which it may reasonably in the wheels, and as the machine was run be subjected.

over the road they loosened up the surface [Ed. Note.-For other cases, see Gas, Dec. of the macadam somewhat in the manner Dig. Om 18.]

that it might be loosened by a pick, plow, 4. Gas Ow16 – GAS COMPANIES — RIGHTS IN or harrow. When it was desired to roll the

STREETS-DUTY OF CARE—CONTRACT WITH
TURNPIKE COMPANY.

surface of the road the spikes were taken A turnpike company, giving a gas company out of the wheels, and the machine run over the right to use a road to lay its mains, cannot, the road, thereby making it compact and by contract with such company, authorize it to exercise a less degree of care than is consistent solid. At the place where the appellant was with the right of the public to use the road with injured the road was 40 feet wide. Sixteen reasonable safety,

feet of this 40 feet was a macadam road, and [Ed. Note. For other cases, see Gas, Cent. about 24 feet of it was what is known as a Dig. 13; Dec. Dig. Om 16.]

summer or dirt road, and at the time of the 5. GAS Om 18 - INJURIES NEGLIGENCE

accident the county authorities were engaged PROXIMATE CAUSE.

To render a gas company liable for an ex- in the reconstruction or repair of the macplosion of gas from a broken main, the injury adam on this road, and in this work had must have been the natural and probable conse- been using the steam roller. In the course quence of the negligent act; a consequence that, in the light of attending circumstances, an or- of the work the appellant was directed by dinarily prudent man might have anticipated. the county officer in charge to run the roller

[Ed. Note.-For other cases, see Gas, Dec. in the summer or dirt road several hundred Dig. Om 18.]

feet, to a point where it would be needed for 6. GAS Om 20-INJURIES-NEGLIGENCE-QUES- use on the macadam road, so that it would TION FOR JURY.

In an action against a gas company for in- not disturb the macadam road between the juries received by plaintiff operator of a steam place it was standing when the order was roller for a county in road repairing, when the given and the place to which he was ordered spikes of the machine's rear wheels pierced a gas main resulting in an explosion, the question to remove it. While running the roller down of the gas company's negligence held for the this dirt road as he was directed to do, the jury under all the evidence.

spikes in one of the wheels punched holes [Ed. Note.-For other cases, see Gas, Cent. in an iron gas pipe that had been placed in Dig. $$ 16, 17; Dec. Dig. Om 20.]

this summer or dirt road, and when these Appeal from Circuit Court, Jefferson Coun- holes were so made, the escaping gas came ty, Common Pleas Branch, First Division. in contact with the fire in the engine, caus

Action by Joseph P. McWilliams against ing an immediate explosion and the envelthe Kentucky Heating Company and others.opment of the engine in flames. When the From a judgment directing verdict for de explosion occurred and the flames surroundfendants, plaintiff appeals. Reversed for ed the engine, the appellant, who was operatnew trial.

ing it, was severely burned and injured, and Edwards, Ogden & Peak, P. F. Sullivan, to recover damages for the injuries so susand L. J. Mackey, all of Louisville, for ap- tained, he brought this suit. pellant. Fred Forcht and Matt O'Doherty, It is further shown by the record that in both of Louisville, for appellees.

1890 the appellees obtained from the Valley Turnpike & Gravel Road Company, a private was in the road, and should have notified corporation that then owned and operated appellant, if he did not know of its existthis road as a toll road, a right of way over ence, and this knowledge on the part of 'the road for the purpose of conveying natural these officials relieved appellees from liabilgas from gas fields in Meade county, Ky., to ity. Louisville, Ky. This right of way was evi- [1] Disposing first of the argument that denced by a written contract between the the knowledge of the county officials that the turnpike company and the appellee, in which gas main was in the road transferred to the it was provided, among other things, that the county liability for the accident. The evigas company

dence shows that the appellant had no "agrees and binds itself to keep the line of a knowledge whatever of the fact that this gas pipe ditch in proper condition, well filled until main was in the road, although it does apthoroughly settled so as not to interfere with ordinary travel, and any metal or other mate-pear that the county officials in charge of rial necessary to maintain said line in good con- the construction of the road at this point dition must be furnished by said second party." knew that this main was in the road; they

Pursuant to this contract the gas com- did not, however, know it was so close to pany laid an 8-inch wrought iron pipe, 5/16 the surface as that it would be punctured by of an inch thick, from its gas fields in Meade the spikes in the roller. But the knowledge county over and along the road to Louis- of the county officials, or whether they did ville. This pipe was laid in a ditch made or did not know of the closeness of the main in the dirt road about 9 feet from the edge to the surface of the road, is not a material of the macadam, and covered over with dirt, factor in the disposition of this case. The the pipe being laid, in many places, at an appellant is not to be dismissed because the average depth of about 1 or 2 feet below the county officials were guilty of some want surface of the earth, at other places nearer to of care, nor are the appellees to be relieved the surface. It is further shown that at the from liability even if it should be assumed time and place of the accident the dirt or that the negligence of the county officials earth which covered this gas pipe had worn was a contributing cause in producing the or washed away, or the mains had been accident that caused the injury. We think originally placed near the surface, so that it is a well-settled rule in the law of neglithe top of the gas main was only an inch or gence that the negligence of one party does two below the surface of the roadbed. It is not excuse from liability a third party, also further shown that about 1901 the county guilty of negligence, if the injury complainof Jefferson purchased this turnpike road ed of would not have happened except for from the turnpike company and converted his negligence. So that, if we should asit into what is known as a free turnpike, sume that the county authorities were negliand it was thereafter operated and main- gent, and that their negligence, concurring tained by the county. The evidence fur- with that of the appellees, produced the inther shows that steam rollers of the type, jury, the right of action created in the apsize, weight, and equipment of the one being pellant against the appellees on account of operated by appellant had been used in the their negligence is not, in any manner, imrepair of the roads of the county for about paired or diminished by the negligence of 12 years before the accident, and at that the county officials if they were guilty of time the county had nine of them in use. any. In Shearman and Redfield on NegliIt should also be noted that the county of- gence (5th Ed.) vol. 1, $ 31, the well-known ficials in charge of the roadwork knew the rule on this subject is thus stated: mains were in the dirt road although ap- "The mere fact that another person concurs pellant did not.

or co-operates in producing the injury, or conThe foregoing statement of fact fairly rep- or small, is of no importance. If the injuries

tributes thereto, in any degree, whether large resents the evidence offered by appellant, caused by the concurrent acts of two persons but which was not considered sufficient by are plainly separable, so that the damage caused the trial court to take the case to the jury. liable for the damage which he caused; but if

by each can be distinguished, each would be In support of the ruling of the lower this is not the case, all the persons who concourt, it is argued by counsel for appellees tribute to the injury by their negligence are liathat the law did not impose on them the ble, jointly or severally, for the whole damage.

It is immaterial how many others have been in the surface, or sufficiently strong or sound fault

, if the defendant's act was an efficient

of the injury." Sydnor v. Arnold, 122 to prevent the same being punctured by the Ky. 557, 92 S. W. 289; City of Louisville v. spikes in the wheels of a machine of the Hart's Adm'r, 143 Ky. 171, 136 S. W. 212, 35

L. R. A. (N. S.) 207; City of Louisville v. Archaracter operated by appellant, and furrowsmith, 145 Ky. 498, 140 S. W. 1022; City ther, that the proximate cause of the gas of Louisville v. Bridwell, 150 Ky. 589, 150 š. escaping was the independent, intervening W. 672. act of the appellant in operating the roller We may therefore leave entirely out of with the spikes in the wheels over the dirt view any supposed negligence or want of road, an act which could not have been rea-care on the part of the county officials. The sonably anticipated by appellees. The fur- issue whether they were negligent or not has ther argument is made that the officials of no place in this case. If the appellees were

cause

Ky.)

MCWILLIAMS v. KENTUCKY HEATING CO.

27

lant has the right to maintain this action or more years ago. But the evidence is that against them without regard to any negli- this type of machine, equipped in the mangence on the part of the county officials that ner that it was when appellant was injured, may have contributed to the injuries. com- had been in use on the roads of Jefferson plained of. Having this view of this feature county for some 12 years for the purposes of the case, we will now proceed to inquire for which it was being used at the time of into the sufficiency of the other arguments the injury. So that this type of machine advanced by counsel for appellees in support was not then either new or novel, but on of the contention that the ruling of the trial the contrary were a part of the usual equipjudge was proper.

ment in use in the improvement of the high[2] The contract obligated the appellees to ways of Jefferson county. In view, therekeep their line of pipes in proper condition, fore, of these conditions, it cannot be said and in such a way as not to interfere with as a matter of law that the cause that proordinary travel on the road. The meaning duced the accident was of such unusual and of this condition, as we construe it, is that extraordinary character as that, in the exerthe appellees undertook to exercise ordinary cise of the care required, the appellees could care to continually keep and maintain the not have anticipated that this accident and gas mains in such manner as to have the resulting injury would happen. The duty road, from day to day, in such condition as appellees were under to exercise ordinary that it would be reasonably safe, consider- care to maintain the gas mains in reasonaing the usage and travel which it might be bly safe condition for public travel does not reasonably foreseen or anticipated it would mean that they were only required to take be subjected to from day to day. Ordinary notice of the kind and type of vehicles and care to maintain a place or thing in safe machinery in use when the pipe was laid, or condition, under a state of facts such as we that they could rest content with conditions have, is a variable and not a stationary de- then existing without giving any heed to the gree of care. It changes as the conditions progress in every department of road workunder which it is to be exercised change, and ing and the changes and improvements conkeeps pace with these conditions, so that the stantly being made in all classes of road, as place or thing under all conditions that it well as other machinery. may reasonably be foreseen or anticipated It may also be conceded that the main, will arise will be in a reasonably safe con- when first laid, was placed in such condidition.

tion as to leave the road safe for the uses [3, 4] It cannot be maintained that public and travel to which the road was, at that service or other corporations may occupy time, subjected. But the care demanded of public roads, under a contract or otherwise, appellees did not end when the main was and be held to a less degree of care than laid. They were under a duty to exercise we have laid down. A private corporation ordinary care to keep and maintain the main having the right to own and control a pub- in such condition as that the road would be lic road, as did the turnpike company, which in reasonably safe condition, considering the gave to appellees the right to use the road uses and travel to which it might reasonfor the purpose of laying their gas mains, ably be anticipated it would be subjected in cannot let a contract for the use of part of the future, and to take notice of the future the road and agree that the other party may use and travel and exercise such care as exercise a less degree of care than would be might be necessary to maintain the mains in consistent with the right of the public to reasonably safe conditions to meet its reuse the road with reasonable safety, nor can quirements. The duty imposed upon the apit contract that the use of the road may be pellees to exercise ordinary care in the mainsuch as to place it in condition that it would tenance of these gas mains imposed upon not be reasonably safe for public travel. them the duty of exercising ordinary care at

[5, 6] But it is insisted that the exercise all times, while the mains were in the pubof ordinary care on the part of the appel- lic road, to guard against injury through any lees in maintaining the gas main in such reasonable and proper use of the road, in condition as to leave the road in reasonably view of the condition to which its use unsafe condition for public travel did not im- der modern methods might be subjected. pose the duty of anticipating or guarding Coulter v. Township, 164 Pa. 543, 30 Atl. against the danger that might follow from 490; Clulow v. McClelland, 151 Pa. 583, 25 the use of the road by the character of ma-Atl. 147, 17 L. R. A. 650; Yordy v. Marshall chine being operated by appellant at the County, 80 Iowa, 405, 45 N. W. 1042; Gregory time of his injury. It is doubtless true that v. Adams, 14 Gray Mass.) 242; Kovarik v. the machine being used was of unusual size Saline County, 86 Neb. 440, 125 N. W. 1082, and weight, and that the spikes in the 27 L. R. A. (N. S.) 832, 136 Am. St. Rep. 704; wheels added largely to the danger of its Board of Commissioners v. Coffman, 60 Ohio use, if, as in the case we have, they came in St. 527, 54 N. E. 1054, 48 L. R. A. 455. contact with the gas main. It is also likely In laying down these rules we do not mean that this type or character of machine was to hold that it was the duty of the appellees, not in use in Jefferson county, or elsewhere in maintaining the gas mains, to provide or to anticipate and guard against accidents S. W. 289. But, as we have endeavored to arising from extraordinary or unusual caus- point out, it cannot be said as a matter of es that could not reasonably have been an- law that appellees, in the exercise of the care ticipated to exist at the time the injury com- required, could not have foreseen and anticiplained of occurred. But they were under pated that this accident might have hapa duty to take notice of the uses to which pened. We think it was a question for a juthe roads in Jefferson county were put, to ry to say, under all the surrounding circumtake notice of the new methods and ma-stances developed in the evidence, whether chinery employed by the county in the re- the appellees in the exercise of ordinary construction and repair of its roads, and to care could have known that their gas main maintain the gas main in such condition as was within an inch, or so of the surface of that they would be reasonably safe for uses the road in many places, and should have such as they were subjected to by the new anticipated or foreseen the use to which the methods and new machinery in use by the road where this gas main was laid might be county.

subjected by the type of machinery the counIt should further be kept in mind that ty was using in the repair of its roads and ordinary care is to be measured by condi- the danger that might arise therefrom, contions as they arise. What would be ordina- sidering the nearness of the gas mains to the ry care under one state of facts might be surface of the road. gross negligence under another state of facts. The case of American District Telegraph What would be ordinary care under some Co. v. Oldham, 148 Ky. 320, 146 S. W. 764, conditions and circumstances would be no Ann. Cas. 1913E, 376, is strongly relied on by care under other conditions and circum- counsel for appellees as fully supporting the stances. Or, as said by Thompson on Negli- lower court in ruling that the appellant failed gence, vol. 1, § 25:

to make out a case; but we find such sub“The care, caution, and diligence required by stantial difference between the facts in that the law is always measured by the circumstanc- case and the facts in the case we have that a es of the particular case, and the rule of admeasurement is, the greater the hazard, the principle of law that might be entirely sound greater the care required.”

when applied to that case would have no In the application of this sound principle pertinency when applied to this one. In the to the facts of this case, it seems very clear American District Telegraph Co. Case it apthat the exercise of ordinary care required pears that Oldham, a fireman in the employ that appellees should exercise a degree of of the city of Louisville, responded with his

When they care commensurate with the dangerous agen- company to an alarm of fire. cy they were transporting in the public road, around a guy post used by the telegraph com

reached the fire they wrapped the hose and not only guard against danger from the around a guy post used by the telegraph comuse of the road by ordinary vehicles, but by pany for the purpose of running a wire from such vehicles and machinery as it might rea- it to a telegraph pole. The guy post, which sonably be anticipated the county would use happened to be rotten, was broken off and in the repair and reconstruction of its roads, pulled down by the strain put on it in operand this could easily have been done by put- ating the hose, and when it fell struck Oid

ham. In holding that the telegraph company ting the mains deeper below the surface.

There is some suggestion by counsel that was not liable, we said: it was negligence to operate this machine on pany to maintain its poles in a reasonably safe

"It was incumbent upon the telegraph comthe dirt road, but there is no substance in condition for the purposes for which it was inthis contention. The county had the right tended, and to keep it in such condition to withto use all parts of the road, and to operate stand such strain as might reasonably be an

ticipated from the travel on the street.

* * this machine in any part of it that suited But the company was under no obligation to its convenience.

maintain a pole in such condition that a fireman The argument is also made that the neg. might safely wrap a hose around it, and if the ligence, if any, of the appellees in maintain- use of the pole for a purpose for which it was

strain of the hose caused the pole to fall, this ing the gas mains so close to the surface of not intended was the proximate cause of the the road was not the proximate cause of the injury.” accident. It is said that the proximate cause It will thus be seen that the decision in of the gas escaping was the independent, in- that case was put distinctly upon the ground tervening act of the appellant in operating that the pole was being used in a manner enthe roller, with the spikes in the wheels, over tirely foreign to the purpose for which it the dirt road. It is generally true, in cases was erected. The telegraph company, in the like this, that to constitute proximate cause exercise of the highest degree of care, could creating liability for negligence, the injury not have anticipated that a fire hose would must have been the natural and probable be wrapped around the pole, thereby subjectconsequences of the negligent act, or, in other ing it to a strain more than it could stand. words, the consequence that in the light of In the case we have the gas mains were in attending circumstances an ordinarily pru- the public road, near the surface, and at a dent man might have anticipated. Logan v. place where it was expected and intended C., N. O. & T. P. Ry. Co., 139 Ky. 202, 129 that vehicles would go. We think the case Ky.)

CITIZENS' TRUST & GUARANTY CO. v. FARMERS' BANK

'

29

court erred in ruling as a matter of law that defendant appeals. Reversed, and cause rethe appellant failed to make out a case for a manded for new trial. jury. Wherefore the judgment is reversed for a new trial, in conformity with this opin- G. w. Gourley, of Beattyville, for appellant.

Burnam & Burnam, of Richmond, and ion.

Hazelrigg & Hazelrigg, of Frankfort, and

Sutton & Hurst, of Beattyville, for appellee. CITIZENS' TRUST & GUARANTY CO. V.

FARMERS' BANK OF ESTILL COUNTY. SETTLE, J. This is an appeal from a (Court of Appeals of Kentucky. Oct. 15, 1915.) judgment entered upon a verdict for $5,000, 1. EVIDENCE C397 – PAROL EVIDENCE AF- with interest from October 22, 1912, recoverFECTING WRITINGS.

ed by the appellee, Farmers' Bank of Estill Where the parties to a contract have de- County, against the appellant, Citizens' Trust liberately pụt their engagement into writing ex. & Guaranty Company, in the Lee circuit pressed to import a legal obligation, with no uncertainty as to its object or extent, all pre- court.

The action in which the judgment vious negotiations and agreements with refer- was rendered grew out of the following ence to the subject matter are presumed to have state of facts: been merged in the writing, and, in the absence of fraud or mistake, parol or extrinsic evi

One W. S. Garrettson, who had entered into dence is not admissible to vary, modify, or con- a contract with the United States governtradict the terms of the written contract. ment to construct lock No. 13 on the Ken

[Ed. Note.-For other cases, see Evidence, tucky river, executed a bond to the governCent. Dig. $$ 1756-1765; Dec. Dig. 397.] 2. EVIDENCE @ 397 – PAROL EVIDENCE AF- tract, upon which the appellant, Citizens'

ment for the faithful performance of the conFECTING WRITINGS—WRITTEN CONTRACT CONSTITUTION.

Trust & Guaranty Company, a corporation A 'written contract which will merge prior having its chief office at Parkersburg, W. Va., negotiations and agreements and render inad, became his surety. After undertaking the missible parol evidence varying its terms need not be in any particular form, or be contained work required of him by his contract, Garin one paper, or signed by both parties, provid- rettson failed to comply with its terms, and ed it constitutes an efficacious contract.

abandoned the work on lock No. 13. Being [Ed. Note. For other cases, see Evidence, liable upon Garrettson's bond, it devolved Cent. Dig. $$ 1756-1765; Dec. Dig. 397.] 3. MONEY RECEIVED Omw18 – AUTHORITY TO struction or pay to the government the lia

upon appellant to complete the work of conADVANCE FUNDS SUFFICIENCY OF EVIDENCE.

bility incurred by it on the bond. Under a In an action against an alleged joint bor-contract with the government similar in rower of funds for money had and received, evi- terms to that of Garrettson it undertook the dence held to show that defendant's only obligation was that in return for a loan to its sub former course. It thereupon sublet this concontractor it would turn over and pay to plain-tract to Gahren, Dodge & Maltby, a corporatiff all estimates furnished by the United States tion of the state of New York, to complete government, or money received thereon, for the work of construction which had previousriver work.

[Ed. Note. For other cases, see Money Re- ly been undertaken and abandoned by Garceived, Cent. Dig. $$ 70-72; Dec. Dig. cm 18.] rettson; the Gahren, Dodge & Maltby com4. BANKS AND BANKING 134-LIEN OF pany being at that time engaged, under a BANK ON DEPOSITS.

contract with the government, in the conWhere a bank advanced a subcontractor struction of a lock and dam in the Kentucky for government work funds to meet pay rolls, it had the legal right to appropriate from a de river, known as No. 14, at or near Heidelposit in such bank by the contractor to the sub- berg, Ky. The contract between appellant contractor's account an amount sufficient to and the Gahren, Dodge & Maltby company cover the advance for pay rolls or to compel is contained in two writings, dated, respecpayment from the deposit.

[Ed. Note.-For other cases, see Banks and tively, September 17, 1912, and October 8, Banking, Cent. Dig. 88 353-374; Dec. Dig. 1912, the first being as follows: Om 134.]

“This agreement made this 17th day of Sep5. UNITED STATES 74–CONTRACTS-SURE-tember, 1912, by and between Citizens Trust & TY'S RIGHT TO COMPLETE WORK-EFFECT. Guaranty Company of West Virginia, a cor

Where a government contractor defaulted on poration, of the one part, and Gahren, Dodge, the work, which was undertaken by his surety, & Maltby, a corporation, of the state of New such surety had the right to protect itself York, of the other part, witnesseth: That Gahagainst threatened loss by assuming the contract ren, Dodge & Maltby agrees to take over and and subletting it, without subjecting itself to complete the W. F. Garrettson contract at primary liability for a debt of such subcontrac- dam No. 13, Kentucky river, Kentucky, in all tor contracted by it to secure funds to meet pay respects acceptable to the government of the rolls of the first contractor, although the surety's United States, and to expedite the work and liability on the contract would have compelled carry it on to the best possible advantage, upit to liquidate such pay rolls.

on the following terms and conditions: Gahren, [Ed. Note.-For other cases, see United States, Dodge & Maltby will at once put a plant worth Cent. Dig. § 57; Dec. Dig. Om74.]

$5,000 upon the site, and will put such an or

ganization and force of men there as will insure Appeal from Circuit Court, Lee County. the prompt and speedy prosecution of the work, Action by the Farmers' Bank of Estill night and day, if necessary. They will pay the

unpaid pay rolls which will be due from the County against the Citizens' Trust & Guaran- 20th to the 25th of September, and will charge ty Company. Judgment for plaintiff, and as their compensation ten per cent. (10%) of

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