Sinkhorn v. Lexington, H. & P. Turnpike Co.

Opinion op the court by

JUDGE WHITE

Affirming.

Tbe appellant, John Sinkhorn, was injured on a bridge on thte Lexington, Harrod-sburg & Perryville Turnpike Road, and brought this action against that turnpike road company, and also against Mercer county, lessee thereof, to recover damages for such injuries. The trial court sustained a demurrer to his petition. Declining to plead further, his action was dismissed, and he appeals.

The petition states that the Lexington, Harrodsburg, & Perryville Turnpike Bond Company is a corporation regularly and duly organized and authorized to construct and maintain a turnpike road in Mercer county, which it had done for many years; that in pursuance of an act of March 17, 1896, a vote was had in Mercer county, and “free turnpikes’’ was voted in the county. The turnpike road company then, as the petition alleged, conveyed the turnpike road to the county by lease, and since tlhlat time the road was under the control and management of Mercer county, and was at the time of the injury complained of. The petition alleges that the defect from which he received his injury existed before the road was leased to the county. It is further alleged that Mercer county in taking the lease of the road, undertook, in addition to the rental to be paid, to save and keep the turnpike company harmless from any suits that may be brought against said turnpike company should said road get out of repair. It is further alleged that since the contract of lease the road has been a free road, no tolls being collected thereon, and the same has been managed and controlled exclusively by the county of Mercer. Then is stated the injury, and causes thereof, showing that the bridges were out of repair. Subsection 5, sec. 474Sb, Kentucky Statutes, (being the act of March 17, 1896), provides: “If it shall appear that a majority, of all the votes cast for and against said proposition are in favor of said proposition, then the fiscal court may acquire, by gift, lease, purchase or contract, any or all the turnpike road®, or parts of such, as lie within the county, on the best terms consistent with public interests., in the discretion of said court, and may provide for the construction of new turnpike or gravel roads when the public good demands it,” — and then provides a tax to maintain the roads. Subsection 6; “All the turnpike and gravel roads thus -acquired or constructed shall become public roads, and shall be maintained and kept in repair by and through the provisions of the fiscal court. . . . But s'add roads shall be free of toll to the traveling public.” Subsection 7 empowers the directors of any turnpike or gravel road.' to convey to the fiscal court the title to such turnpike road. Thus it is seen that, when free turnpikes are voted in any county by the fiscal court of such county, the directors of any road in that county are authorized and empowered to contract by gift, lease, or absolute sale of any turnpike road or part thereof in .such county. It is also seen that when such contract is made .the road becomes free of toll, and is maintained by provision of the fiscal court out of general fund's raised by taxation. There is no provision in the act of 1896 or elsewhere, in this State, that subjects the county or its fiscal court to an action for damages caused by negligence in failure to keep its public highways in repair. In the absence of a statute providing for liability, it has been held that the county nor the county court can be made liable for injury caused by defective roads and bridges. Wheatly v. Mercer, 9 Bush, 705; Hite v. Whitley County Court, 91 Ky., 168, (12 Ky. Law Rep., 764), (15 S. W., 57), (11 L. R. A., 122;) Sheppard v. Pulaski Co., 13 R., 672, S. W., 15; Downing v. Mason Co., 87 Ky., 208 (10 R., 105), (8 S. W., 264), (12 Am. St. Rep., 473). We are referred by counsel to a number of cases from other States where counties are held liable, but after a careful consideration we prefer to adhere to our former ruling on the subject.

It is contended that the contract by which the county agreed to saw the turnpike company harmless would make the county liable. If this position be conceded, yet there would, be no liabililty on the contract unless the turnpike company would be liable. In the case of Harper v. Railroad Co., 90 Ky., 360 (12 R., 333), (14 S. W., 347), this court said: “The Chesapeake, Ohio & Southwestern Eailroad Company filed a demurrer to the petition, which was sustained, and, we think, properly done, because, though it is alleged to be the owner, the Newport News & Mississippi Yalley Company, haying the exclusive control and management of the road, and the locomotive by which the injury was done being at the time operated by its 'employes, is alone answerable in damages to the plaintiff.” In the recent case of Railroad Co. v. Breeden’s Adm’x., Ill Ky., 729, 23 Ky. Law Rep., 1021 (64 S. W., 667), the question was fully discussed, and the doctrine of the Harper case, supra, is recognized, though not applied, as the facts of the Breeden case did not show a surrender of the roadway by the Louisville & Nashville Eailroad Company, either with or without legislative authority. The rule in the Harper ease is supported by Thomp. Neg., sec. 1955; also by numerous authorities collected in note to Caruthers v. Railroad Co., 44 L. R. A., 737-750 (s. c. 54 Pac., 673). According to the rule in the Harper case, if the lease is made of the entire road, its rights and franchises, and this by virtue of general law, authorizing such lease, then the lessor is not liable for any misdoings or torts of the lessee while in such possession. YYe therefore conclude that the turnpike company is not liable for any negligent failure to repair the road or bridge. It must follow that the county would n'ot be liable on its contract of indemnity.

For these reasons the judgment 'sustaining the demurer and dismissing the petition is not error. Judgment affirmed.