City of Lawrenceburg v. Lay , 149 Ky. 490 ( 1912 )

Opinion op the Court by

Judge Carroll

Reversing.

In this suit by tbe appellee to recover damages for personal injuries sustained by reason of tbe alleged negligence of tbe appellant city in placing and permitting to remain in one of the streets an obstruction, tbe jury assessed her damages at $500.00, and from tbe judgment entered accordingly, tbe city prosecutes this appeal.

Tbe following facts appear from tbe uncontradicted evidence: That leading off from tbe main street in tbe city was an alley about twenty-five feet wide and some two hundred and twenty feet deep. This alley was what is called a “blind alley,” and was used as an entrance to tbe back yards and stables of tbe property owners abutting on it, tbe rear or back end of tbe alley being closed. That on public days when large crowds were in tbe city, noisy, drunken and disorderly persons were in tbe habit of congregating in this alley, to tbe great annoyance and disturbance of tbe property owners and tbeir presence endangered tbe safety of persons passing on the street on wbicb the alley opened. That to prevent tbe assembling of this class of people in tbe alley, tbe city directed, or at least permitted tbe police officers to stretch a rope across tbe mouth of tbe alley by tying it to two telephone posts that stood on each side of tbe alley. That these poles were on a line between tbe sidewalk and tbe street, and as tbe rope was stretched parallel with tbe sidewalk, it did not, of course, interfere in any way with tbe customary use of tbe sidewalk or tbe street, but it served to warn people that tbe alley was closed, and to prevent tbe taking of horses in it from tbe street. That tbe rope was large and heavy, and was suspended about five (5) feet from tbe ground, and that it bad been tbe custom of tbe city to close tbe álley in this manner on public days for eight or ten years previous to tbe injury complained of. That on the day appellee was injured there was a large crowd in town to see a circus, and tbe rope was placed in tbe usual manner and as above described, to prevent tbe use of tbe alley. 'That during tbe day and while appellee was walking on tbe sidewalk in front of tbe mouth of tbe alley, a horse that bad been left standing alone in tbe street and that was kept in one of tbe stables in tbe alley, ran into tbe alley, and in passing under tbe rope, it was caught in some way by tbe saddle on tbe horse and pulled loose from its fastening, or broke, and when so broken or detached, it struck with considerable force tbe person of appellee inflicting, tbe injury of wbicb she complains. It is not claimed by tbe appellee that tbe manner of attaching tbe rope to tbe posts was negligent, or that tbe rope was not of sufficient size and strength for tbe purpose intended, or that it could not be plainly seen by any person using tbe sidewalk or the street or, that if it was allowable to close tbe alley in this manner tbe rope and tbe manner of its suspension was not in every respect suitable. But it is contended for tbe appellee that maintaining tbe rope in tbe manner described constituted an obstruction of tbe street, and tbe city was, therefore, guilty of negligence in failing to keep its streets and public ways in reasonably safe condition fo.r public travel, and that this negligence was tbe proximate' cause of tbe injury received by tbe appellee, and so tbe city should be made to respond in damages. This was the view of the matter taken by the trial judge, who instructed the jury in substance that they should find for appellee if they believed from the evidence that stretching the rope in the place and man-’ ner it was, rendered the street or sidewalk at said place in an unsafe or dangerous condition,' and that while appellee was walking along the sidewalk exercising ordinary care for her safety, a horse ran under the rope, causing it to become unfastened and- to strike and injure her. On the other hand, it is argued for the city that it was not guilty of actionable negligence in closing the alley by means of the rope, and that even if its acts in this respect should be treated as negligence, this negligence was not the proximate cause of the injury, and so there should be no recovery.

There is much force in the argument of counsel for appellant that the act of the city in maintaining the rope was not the proximate cause of the injury, as the rope did not in any manner obstruct the use of the street or sidewalk in the customary manner of their use, although if an attempt had been made to gO' from the street to the sidewalk, or from the sidewalk to the street, at the place where the rope was suspended, it would offer in some measure an obstruction. The rule is that to constitute negligence in cases like this where concurring independent causes produce accident, the injury complained of must be one that under the circumstances might have been reasonably foreseen or'anticipated by a person of ordinary prudence to flow from or be the natural or probable consequence of the first negligent act. Sydnor v. Arnold, 122 Ky., 557; Louisville Home Telephone Co. v. Gasper, 123 Ky., 128. And so, it is argued that as the rope was so placed as not to obstruct the customary travel, the city in the exercise of reasonable prudence could not have anticipated that anything would come in contact with this rope in so violent a manner as to cause it to become unfastened or break, and, hence, should not be held liable for the act of the run-away horse that caused the rope to break or become unfastened.

But, passing this question as not necessary to a decision of the case, we are of the opinion that the city is not liable for another reason. Keeping in mind that the city is sought to be held responsible on the sole ground that in maintaining the rope it failed in its duty to keep its streets in safe condition for travel, let us see how the case stands.

While it is the general rule that a city is under a duty to keep the streets and public ways accessible for travel and free from obstructions that might cause injury, this general rule is not without exceptions. In the safe, convenient and orderly conduct of its affairs, every city frequently finds it necessary to obstruct or to permit others to- obstruct its streets and public ways and to make them unfit and dangerous for use and to partially or completely close parts of them to public travel. Frequent and daily illustrations of this are seen when streets and other public improvements are being constructed or reconstructed, and when buildings abutting on streets are being erected or repaired. But no ene would contend that the city was liable for- thus temporarily closing or obstructing, or permitting others to temporarily obstruct or close its streets if reasonable barriers or lights were placed to give notice of the obstruction or the unsafe condition of the streets. It has also been held permissible for a city to erect barriers across the streets during fires or when a parade is in progress, or when it is necessary to prevent the noise of passing vehicles from endangering the life of a sick person in a house adjacent to the street, or to protect grass plots. Anderson v. Mayor, 2 Pennewells, Delaware, 28; City of Paducah, v. Simmon, 144 Ky., 640; Simons v. City of Atlanta, 67 Ga., 618, 44 Am. Rep., 739. In this last mentioned case,, the court said:

“The right temporarily to obstruct a street springsfrom reasonable necessity,, and is limited by it, and those who exercise the right must so conduct themselves as to discommode others as little as is reasonably practicable, and remove the obstruction or impediment within a reasonable time, having regard to the, necessities and circumstances of the case; and when they have done this, the law holds them harmless.,* * * It is, however, a safe and reasonable rule to declare that so long as the alleged obstruction is temporary and reasonable in its character and is intended for the public safety and convenience, it is no cause of complaint. ’ ’

As there can be no- doubt of the right of a city to obstuct temporarily the use of its streets under certain circumstances, if it employs such means of obstruction as are reasonably suitable and sufficient to warn travelers of the fact that the obstruction exists, we think the principle allowing the temporary obstruction of streets for the safety, convenience and comfort of the inhabitants of the city and the public generally, may well be extended to embrace the right to temporarily close by suitable barriers a street or other public way when it is deemed advisable by the city authorities so to do to preserve peace and quiet and prevent disorder. And this power the city may exercise independent of ordinance, whenever in the judgment of the authorized city officials the peace, quiet and order of the city demands that it should be done. Of course, when the city undertakes to obstruct or permit the obstruction of a street by barriers, the barriers so erected must be reasonablv sufficient to give notice that the way has been closed or else, as held in City of Glasgow v. Gillenwater, 113 Ky., 140, will be liable in damages to any traveler who in the exercise of due care comes in contact with a barrier of such character as not to give sufficient warning of its presence. Here the barrier erected was sufficient in size and form to give notice of its presence, and if appellee, in the day time, in attempting to go from the sidewalk to the street at the place where this rope was suspended, had come in contact with it, and suffered injuries, we think it clear the city would not be liable; and this be-, ing so, it should not be made liable because a run-awav horse came in contact with the rope and as a consequence appellee was injured.

- We think the city in the exercise of its police power had the undoubted right to prevent the assembling in the alley of the disorderly crowd who made it a habit on public days to congregate there to the annoyance and disturbance of adjacent property owners, as well as persons parsing on the street. Having then the right to close the alley on these occasions to the class who fre- . quented it, the only question is, did it have the authority to do it in the manner described.

Of course, the city might have closed the alley by the use of a gate, or it might have stationed a policeman there to prevent the assembling of disorderly crowds, or possibly it might by proper procedure have closed the alley entirely as a public way; but the fact that it might have prevented the use of the alley by disorderly persons in any one of these ways did not prohibit it from adopting the means it did.

The method adopted was effective, as well as reasonably safe. The rope did not interfere with the ordinary and usual use of the sidewalk or street, and under the circumstances cannot he considered such an obstruction as would make the street unsafe for public travel.

The motion for a peremptory instruction should have been sustained, and, if there is another trial, and should take the case from the jury and enter a judgment the evidence is the same as in this record, the trial judge dismissing the petition.

Wherefore, the whole court sitting, the judgment is reversed, with directions for a new trial in conformity with this opinion.