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the defendant maintained a gas well. As plaintiff approached, one of defendant's employés opened the valve of the pipe in which the gas was confined under great pressure, and permitted it to escape, thereby frightening plaintiff's horses and causing him to be thrown from the wagon and injured. The court held that, while the operation of a gas well was lawful and could not be regarded as a nuisance per se, the owner was under the duty of exercising ordinary care to operate it in such a manner as not to injure others, and affirmed a judgment in plaintiff's favor on the ground that, under the facts of the case, the questions whether the defendant's agent could have seen the team, and whether he performed the duty of looking for passing teams before opening the well, were clearly for the jury. In the case of Hein-blown by the wind and cause some passing miller v. Winston, supra, the defendants were engaged in deepening a cut for the Chicago Great Western Railway Company and were using a steam shovel 55 feet long, 12 feet high, with a smokestack extending 6 feet above the car, and with a boom 24 or 25 feet high. The cut was spanned near its center by a public highway bridge, the floor of which was from 28 to 30 feet above the bottom of the cut. As plaintiff approached the bridge in a carriage, her horse became frightened, and she was thrown from the carriage and injured. Plaintiff recovered $2,000 damages. After telling the jury that the defendants had the right to deepen the cut, and to use for such work the means ordinarily adapted to and used for such purpose, and, further, that if they found the steam shovel an instrumentality ordinarily used for such purpose, the defendants had the right to use it, the court added:

hay cap in a highway, or the use of a large steam shovel, or the operation of a gas well near the highway, and the mere swinging of a small door attached to a Building 8 feet by 6 feet, located on the other side of a high board fence and 50 feet from the highway. It cannot be said that the swinging of a door so located is in any sense a nuisance, or that the owner of the building should anticipate that it would frighten horses or mules of ordinary gentleness while passing along the highway. The rule that the owner of property should so use it as not to injure others does not go to the extent of requiring him always to be on the alert to see that the doors of his residence, or barn, or outhouses, are securely fastened, for fear that, if left open, they might be

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"If, however, you find it was naturally calculated to frighten horses of ordinary gentleness, when used at or near the public highway, then it was the duty of the defendants to exercise ordinary care in the use of said steam shovel at or near the public highway, so that their use of the same would not be an unnecessary interference with or unnecessarily dangerous to, persons making lawful use of the public highway."

There was also submitted to the jury the

question whether the defendants should have provided some one to warn travelers of the danger. While approving the instructions and holding that plaintiff was entitled to recover, the Supreme Court was of the opinion that the verdict was excessive, and ordered a new trial, unless the plaintiff elected to accept a judgment of $1,000.

horse or mule to become frightened and in-
jure his rider. That a recovery in this case
would necessarily result in such a rule there
We, therefore, conclude
can be no doubt.
that the trial court should have sustained
defendant's motion for a peremptory instruc-

tion.

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

THOMASSON et al. v. HIATT. (Court of Appeals of Kentucky. Feb. 27, 1917.) 1. LANDLORD AND TENANT 164(8)-LIABIL

ITY FOR TENANT'S INJURY.

It is a general rule that the tenant takes premises as he finds them, and landlord is not liable for injuries resulting from dangerous conditions unless not known or reasonably discoverable by tenant, and landlord conceals or fails to disclose conditions.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 630.]

2. LANDLORD AND TENANT
ITY FOR TENANT'S INJURY
GER.

164(8)-LIABILOBVIOUS DAN

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It is clear, we think, that the rule an- Frank V. Benton, of Newport, for appelnounced in the above cases cannot be ap-lants. William F. Clark, of Newport, for plied to the facts of the case under con- appellee. sideration. Plaintiff does not contend that her mule was frightened by the operation of any of the appliances in the gas station. Her sole complaint is that the door swung open and frightened the mule. There is a wide difference between the placing of a

CLAY, C. In this action for damages for personal injuries, plaintiff, Sophia Hiatt, recovered of the defendants, Stella Thomasson and W. J. Thomasson, a verdict and judgment for $1,500. The defendants appeal.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

While several grounds are urged for a re-under the law, plaintiff was bound to know versal we deem it necessary to consider only those things which a reasonable inspection the failure of the trial court to sustain defendants' motion for a peremptory instruction.

would reveal, she will not be heard to say that she did not know of a condition that was plainly observable and which she could not fail to know unless she closed her eyes. As the defendants were under no duty to disclose to plaintiff a condition that was perfect

a reasonable inspection, it follows that the element of deceit is lacking, and that the trial court should have directed a verdict in favor of the defendants.

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

Briefly stated, the facts are as follows: Defendants own a house on Twelfth street, in Newport. The house contains six rooms, three on the first and three on the second ly apparent, and therefore discoverable by floor. During the latter part of June, 1915, plaintiff rented from the defendants the three rooms on the upper floor and took possession of same on July 1st of that year. These rooms were reached by means of a stairway leading from the first to the second floor, and the stairway was not connected in any way with the rooms on the first floor. At the top of the stairway was a landing and two doors, one on the south leading into the SAULSBURY v. ELKHORN CONSOL, COAL middle room, and one on the east leading into the kitchen. The kitchen door opens out, and the platform or landing does not extend the full width of the kitchen door. On July 9th plaintiff, while attempting to go from the kitchen to the platform, stepped out the door and was precipitated to the floor beneath, a distance of several feet, and thereby received the injuries of which she complains.

[1] It is the settled law of this state that the tenant takes the premises as he finds them, and the landlord is not liable for injuries growing out of the dangerous or defective condition of the premises, unless such condition is known to the landlord and is not known to, or discoverable by, the tenant on a reasonable inspection, and the landlord conceals or fails to disclose such condition to the tenant. Holzhauer v. Sheeny, 127 Ky. 28, 104 S. W. 1034. The reason for the rule is that the liability of the landlord in such cases rests entirely upon the notion of deceit; that is, knowledge on the part of the landlord of the defective condition, and fraudulent concealment from the tenant. Manifestly, if the tenant knows of the defective condition, or could discover it by a reasonable inspection, the element of deceit is lacking, and there can be no recovery. Andonique v. Carmen, 151 Ky. 249, 151 S. W. 921.

& COKE CO.

(Court of Appeals of Kentucky. Feb. 27, 1917.) 1. MASTER AND SERVANT 217(23)—INJURIES TO SERVANT SAFE PLACE TO WORK.

A laborer in a coal mine, who was employed to push cars through the tunnels who knew that slate had fallen, and that the track had been raised to make an incline over it, and who attempted to push a loaded car over the hump, could not invoke the safe-place doctrine to support recovery where he knew of the hump and had notified the master thereof.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 591.]

2. MASTER AND SERVANT 234(5) INJURIES TO SERVANT CONTRIBUTORY NEGLI

GENCE.

Such servant, when he attempted to push a heavy car which overcame his strength and ran over him, was guilty of contributory negligence, and could not recover.

Servant, Cent. Dig. § 684.]
[Ed. Note.-For other cases, see Master and

Appeal from Circuit Court, Pike County.

Action by Lackie Saulsbury against the Elkhorn Consolidated Coal & Coke Company. Judgment dismissing the petition, and plaintiff appeals. Affirmed.

J. S. Cline and W. K. Steele, both of Pikeville, for appellant. J. J. Moore, of Pikeville, for appellee.

CLAY, C. In this action for damages for personal injuries by plaintiff, Lackie Saulsbury, against the Elkhorn Consolidated Coal & Coke Company, a demurrer was sustained to the petition as amended and the petition dismissed. Plaintiff appeals.

[2] Here plaintiff's injuries were not due to the fact that the platform or stairway gave way by reason of any structural weakness or decay. Her sole complaint is that the platform was of insufficient size and was not properly guarded. In other words, the alThe petition, in substance, is as follows: leged dangerous condition of the platform The defendant is a corporation engaged in was not due to any latent defect, but was the business of mining and shipping coal. due altogether to the plan of construction. Plaintiff was a laborer in defendant's mines. While plaintiff claims that she was going out It was a part of his duty to push coal cars of the kitchen door for the first time and did into the rooms of the mines. In one of the not know of the insufficiency of the platform, rooms the slate had fallen from the roof and she admits that she had been occupying the the débris had been forced under the track. premises for about eight days, and during The cross-ties were thicker than usual, and this time had occasion to use the stairway because of the thickness of the cross-ties and at least two or three times a day. Since, of the accumulation of the débris under the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

track, the track had become elevated to such an extent that it required a great deal of effort and exertion on the part of the plaintiff to push the car over said high place in the track. On the day previous to the accident plaintiff called the attention of the mine foreman to the condition of the track. Said foreman promised plaintiff to send men at once to repair the track. Relying on this promise, plaintiff continued to work. He did not know of the dangerous and unsafe condition of the track or place and could not have known of it by the exercise of ordinary

care. The defendant did know of the dan

He also alleges that:

"While pushing said car up over the aforesaid declivity in the said track his strength was insufficient to force the car up over said knoll in said company's track, and that the car came back on this plaintiff, running down said declivity of its own momentum and running over this plaintiff."

In other words, the case is ope where the defendant claims that his strength was insufficient to cope with the difficulty, and that, by reason of his insufficient strength, he was injured. In our opinion, this case cannot of Sandy Valley & Elkhorn Railway Co. v. be differentiated in principle from the case Tackitt, 167 Ky. 756, 181 S. W. 349, L. R. A.

gerous condition, or could have known of 1916D, 445, where it was held that a servant it by the exercise of reasonable care. While who overstrained himself while lifting a jack in the performance of his duty at the place could not recover from the master, because assigned him by the defendant, plaintiff he was the best judge of his own physical undertook to push a coal car over the steep strength, and was under a duty not to place or declivity in the track. His strength overtax it. In that case plaintiff was engagwas insufficient to force the car over the ed in lifting. In the present case plaintiff knuckle, and the car ran down the declivity was engaged in pushing. While he says that of its own momentum and injured plaintiff. he did not realize the danger, the fact reThe allegations of the amended petition are, mains that he knew of the condition of the in substance, as follows: The defendant neg- track, and complained of this condition to ligently failed to furnish plaintiff a reasona- the defendant. Not only so, but the work in bly safe place to work. The place was not which he was engaged was of the simplest so obviously dangerous that a person of or- character. Any man of common understanddinary prudence would understand and ap-ing would necessarily know that if his preciate the danger. Defendant not only strength was insufficient to push the car promised to repair the place, but assured over the knoll, or to hold it on the incline, plaintiff that there was no danger in con- the car would run down the incline. While tinuing to work there. Relying on this prom- it is alleged that plaintiff did not appreciate ise and assurance of safety, plaintiff continu- the danger, it is not shown that plaintiff was ed to work. a minor or inexperienced in such work.

[1] Plaintiff insists that the trial court [2] In view of the admitted facts, we are erred in holding that his petition as amended forced to the conclusion that the danger indid not state a cause of action. His argu- cident to plaintiff's work was so obvious and ment is as follows: It is clearly alleged that easily appreciated that he assumed the risk, his injuries were caused by the failure of the notwithstanding defendant's promise to redefendant to furnish him a reasonably safe pair and assurance of safety. In other place to work; that he complained of the words, plaintiff, with full knowledge of the condition of the place, and defendant not fact that the condition of the track required only promised to repair it, but assured him extra exertion on his part, undertook to perthat there was no danger in continuing at form the task, and, misconceiving his own work; that he relied upon defendant's prom-strength, was unable to cope with the situaise to repair and assurance of safety, and, tion. Under these circumstances, the trial it being further alleged that the place was court properly held that the petition as not so obviously dangerous that a person of amended did not state a cause of action. ordinary prudence would refuse to work, he Judgment affirmed. completely negatived the theory of the assumption of risk, and is therefore entitled to recover if the facts pleaded are true. We are unable to perceive how the safe-place doctrine applies under the facts alleged. They do not show that the place where he was required to work was dangerous or unsafe. They merely show that the work at that place was attended with more difficulty than at places where the track was level. This is plainly shown by the allega

tion that:

"It required a great deal of effort and exertion on the part of this plaintiff to push a coal car up over said high place in the track."

DULEY v. TOWN OF SMITHLAND.

(Court of Appeals of Kentucky. Feb. 23, 1917.)
1. MUNICIPAL CORPORATIONS 802-TORTS-
DEFECTS IN STREETS-CAUSE OF ACCIDENT.
A driver who negligently permitted his horse
to get upon the sidewalk, as a result of which
the buggy was overturned in a ditch between
the sidewalk and the street, cannot recover for
the city's negligence in failing to build a barrier

between the street and the ditch, since such bar-
rier would not have prevented plaintiff's buggy
from falling from the walk into the ditch.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1672-1683.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. MUNICIPAL CORPORATIONS ~759(5)—CARE | street, walked up on a granitoid pavement OF STREETS-EXTENT OF DUTY.

bordering it, from which the buggy fell into an open ditch or sewer, four feet deep and of as great a width, at the edge of the pavement and between it and the street, thereby

Cities are only required to exercise ordinary care to keep their streets in reasonably safe condition for public travel, and that duty arises only as to streets it undertakes to improve. [Ed. Note. For other cases, see Municipal throwing appellant into the ditch and greatCorporations, Cent. Dig. § 1600.]

3. MUNICIPAL CORPORATIONS

PROVEMENTS OF STREETS-DISCRETION OF
CITY.

The character of street improvements is a matter resting in the discretion of the city authorities.

[Ed. Note.-For other cases, see Municipal abandoned the guidance of the horse he was Corporations, Cent. Dig. § 1600.] 4. MUNICIPAL CORPORATIONS FECTS IN STREETS-SIDEWALK-INJURIES TO

DRIVER.

ly bruising and injuring his person, but with759(5)-IM-out breaking any of his bones. Among other things it is, in substance, alleged, in the petition, that it was raining and an unusually dark night, which conditions so hindered the appellant from seeing the way that he driving and left it to that animal to find the 800(1)-DE-way and keep in the street; that the appellee negligently failed to provide or maintain lights for Level street, or any of its streets, or to provide a handrail to the pavement, or between the ditch and the street, to prevent persons, horses, and vehicles from falling therein; and by reason of such negligence the use both of the street and pavement was

The negligent failure of a city to erect a barrier between a sidewalk and a ditch between the walk and the street does not render the city liable for injuries to a driver who negligently permitted his horse to draw him onto the sidewalk, since the city owes no duty to make the sidewalk safe for the use of horses.

[Ed. Note. For other cases, see Municipal rendered dangerous, which negligence caused Corporations, Cent. Dig. § 1666.] 5. MUNICIPAL CORPORATIONS ING STREETS-DUTY.

appellant and his buggy to be thrown into 797-LIGHT- the ditch resulting in the injuries sustained by him. Reduced to its final analysis, the petition rests appellant's right of recovery upon the alleged negligence of appellee in failing to light its streets, and failing to pro

A city is under no obligation to light its streets, and is not liable for injuries caused by their unlighted condition where it has not attempted to light them.

[Ed. Note.-For other cases, see Municipal vide a guard rail at the edge of the pavement Corporations, Cent. Dig. § 1656.]

next the ditch, or between the ditch and

Appeal from Circuit Court, Livingston | street. County.

Action by H. H. Duley against the Town of Smithland. Judgment for defendant on demurrer to the petition, and plaintiff appeals. Affirmed.

W. I. Clarke, of Smithland, for appellant. Chas. Ferguson, of Smithland, for appellee.

SETTLE, C. J. This action was brought by the appellant, H. H. Duley, against the appellee, Town of Smithland, seeking the recovery of damages for personal injuries resulting to him, as alleged, from the negligence of the appellee in failing to keep one

of its streets and the sidewalk thereof in a

[1] The petition admits the ditch was not in the street, but that it ran along its side next to the pavement; and also admits appellant's knowledge of the ditch and its location with reference to the street and pavement. In brief, according to the allegations of the petition, the accident was not caused by the falling of the buggy into the ditch by appellant's driving along the street where he had a right to be, and it was his duty to drive, but because of the horse getting upon had no right to permit him to go or carry the the sidewalk with the buggy, where appellant buggy, and where he would not have gone but for the negligence of appellant, who was and guidance. There is therefore no ground driving in abandoning him to his own will upon which to rest his complaint that the accident resulted from the negligence of appel

reasonably safe condition for the use of persons riding in vehicles. The appellee filed a general demurrer to the petition, which the circuit court sustained. Appellant declining to plead further, his petition was dismissed lee in failing to provide a guard rail or barat his cost. From the judgment manifest-rier along the ditch next the street, for the ing these rules he has appealed.

presence of such a barrier would not have The petition sets out in great detail, and prevented the accident, as the buggy did not with many repetitions, both the facts and evi- fall into the ditch from appellant's driving dence upon which appellant rests his right on the street. On the other hand, it is equalof recovery. It appears from its averments ly apparent that appellee was not guilty of that his injuries were received under the fol- negligence in failing to provide a guard rail lowing circumstances: He is a practicing along the edge of the pavement next the physician, and in returning from a profes-ditch to prevent vehicles passing over the sional call to his home in Smithland about 9 o'clock p. m. September 30, 1915, upon reaching Level street from a street intersecting it the livery horse he was driving to his buggy, instead of turning into and following Level [2-4] Cities are only required to keep their For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

pavement from falling into the ditch, as the pavement was not designed or intended for the use of horses or vehicles, but for pedestrians alone.

streets in reasonably safe condition for public | jurisdictions it has been held that it is not travel, and to exercise ordinary care to do liable in damages resulting from such failso, and such duty arises only as to the streets ure, even though it have an ordinance reundertaken to be improved. Moreover, the quiring the streets to be lighted. It is not, character of the improvements is a matter however, alleged by appellant, in his petiresting in the discretion of the city authori- tion, that the appellee has such an ordinance. ties. Gee's Adm'r v. City of Hopkinsville, 154 This question was considered in Gee's Adm'r Ky. 263, 157 S. W. 30, 46 L. R. A. (N. S.) 229; v. City of Hopkinsville, supra, and in disElam v. City of Mt. Sterling, 132 Ky. 657, cussing it we, in the opinion, said: 117 S. W. 250, 20 L. R. A. (N. S.) 512; 2 Dillon Mun. Corp. § 1019. Whether appellee should have maintained a guard rail on the pavement bordering the ditch is not here a matter necessary to be determined. Only a pedestrian, injured by falling into the ditch while walking upon the pavement under such conditions as would have prevented him from knowing of its close proximity to the sidewalk, and of the danger arising therefrom, in appellant's injuries was the darkness of could complain of the failure of the city to provide such a safeguard. Manifestly, appellee is not liable to appellant for the injuries sustained by the falling of his buggy from the pavement into the ditch, for the pavement was not maintained for the use of horses or vehicles. Consequently, no duty rested upon appellee to provide such a barrier as would prevent them from falling from the pavement into the ditch.

"Coming now to the question of lights, the same principles apply as do in the construction of streets. A city is under no duty to light its streets; it may, if it chooses to do so, leave them unlighted, and cannot be made liable in damages to a traveler who is injured solely because of its failure to light them."

In Webster v. City of Vanceburg, 130 Ky. 320, 113 S. W. 140, 19 L. R. A. (N. S.) 752, 132 Am. St. Rep. 392, we held that:

"The sidewalks of a city are intended solely for the use of pedestrians. While they must be kept in reasonably safe repair for such use, the city is not bound to keep them fit for the use of vehicles also. If drivers of vehicles nevertheless use them for passage of their wagons, they must do so at their peril."

In King v. Village of Ft. Ann, 180 N. Y. 496, 73 N. E. 481, the court, in refusing a recovery resulting from an accident similar to that in the instant case, said:

"The evidence does not show why, or for what reason, the plaintiff allowed his team to leave the roadway, which was perfectly safe, and proceed upon the side of the road which was not safe. Doubtless, it was a mistake on his part, due, possibly, to the darkness of the night, but it was a mistake which the defendants' officers were not bound to anticipate or guard against. It is one of those unfortunate accidents that frequently happen upon country highways to travelers in the night; but to hold that the town or the village, or the public authorities, are to be held responsible in pecuniary damages for such an accident would impose upon them a burden quite serious, if not unjust."

After all is said it is apparent from the averments of the petition, as a whole, that the proximate cause of the accident resulting

the night and his own negligence in leaving to the inclination of the horse he was driving the selection of the way to be traveled. In other words, the petition fails to state a cause of action. Hence the demurrer thereto was properly sustained.

For this reason the judgment is affirmed.

DUPOYSTER v. MILLER.

(Court of Appeals of Kentucky. Feb. 27, 1917.) 1. APPEAL AND ERROR 1050(2), 1214-REMAND-RETRIAL-LAW OF THE CASE-EVI

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TRIAL INSTRUCTIONS.

1215-REMAND-RE

Instruction that the jury might find the line as described in deeds if there had been a substantial change in the road, though the road had never been located where the line in the deeds was run, was error in view of the former opinion.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4716.]

[5] It is not alleged in the petition that the city, having provided a system for lighting the streets, failed on the occasion of the accident to maintain a light on Level street. On the contrary, it is alleged therein that appellee did not have such a system or maintain lights upon any of its streets. It cannot, therefore, be claimed that its failure to have a light upon Level street, at or near the place of the accident, on the night in question, was negligence. A city or town is CLARKE, J. This is the second appeal not required to light its streets, and in some of this case; the opinion upon the former ap

Appeal from Circuit Court, Ballard County. Action by J. D. Dupoyster against W. F. Miller, Sr. Judgment for defendant, and Reversed and remanded. plaintiff appeals.

J. B. Wickliffe and H. F. Turner, both of Wickliffe, for appellant. W. A. Anderson, of Wickliffe, and J. E. Kane, of Bardwell, for appellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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