COVINGTON SAWMILL AND MANUFACTURING COMPANY v. DREXILIUS.

[120 Ky. 493, 87 S. W. 266.]

NUISANCE—Private Sewer Across Public Street-Liability of Constructor. If a sewer constructed in a public alley without the consent of the city, by the owner of a lot adjoining such alley for his own convenience, is by him allowed to become in such a defective condition as to constitute a nuisance, he, and not the city, is liable for an injury to a child caused by her jumping from a pile of lumber and breaking into such sewer. In such case it is the duty of the constructor of the sewer or his successor in interest to keep it in a safe condition for those who are entitled to use the alleyway. (p. 594.)

STREETS-Rights of Children-Negligence. The fact that a child was playing in a public alleyway when injured through the negligence of another is no defense to an action to recover for the injury. (pp. 595, 596.)

NEGLIGENCE

Gross-Punitive Damages.-Instructions to find punitive damages if the jury believe from the evidence that the injury complained of was the result of gross negligence is reversible error if there is no evidence whatever of such negligence. (p. 597.)

S. D. Rouse and J. B. Frankel, for the appellant.

R. C. Simmons, for the appellee.

497 O'REAR, J. Appellant was operating a lumber plant on a lot adjoining one of the public alleyways of the city of Covington. To divert a flow of surface water from the lot for its own convenience, it constructed and maintained a blind ditch or sewer, made of oak planks, across this alleyway and along the side of its lot, which was covered with dirt, hiding the location of the sewer. The ditch or sewer was not kept in repair, so that the planks became rotten. Appellee, a child of eleven or twelve years of age, while playing on the lumber piles and in the alley, jumped from one of these lumber piles to the ground in the alleyway, when the covering to this ditch gave way under her weight, her foot was caught in the hole thus made, and her leg broken. In her suit against appellant she was awarded a verdict of two thousand five hundred dollars in damages. This appeal presents the following matters which are alleged as errors at the trial, and for which a reversal is sought.

It is first complained that appellant was not liable for the condition of the street; that, when the ditch was dug and the box sewer put in, it was made reasonably safe for its purpose, Am. St. Rep., Vol. 117-38

and to keep it in repair was not the duty of appellant. The alleyway was a public highway which had been dedicated to the public use and accepted by the city many years before the accident sued for, and was so used at the time of the accident. The act of appellant in digging and maintaining the ditch across the alleyway without the direction 498 or permission, and, for that matter, without the knowledge, of the municipality, being for appellant's personal convenience, could not impose the duty on the municipality to keep it in repair. It was appellant's duty to maintain the ditch or sewer in such reasonably safe condition as would not interfere with the public's superior right to use the alleyway for any purpose for which it might have been properly used. Its failure to keep the ditch in such repair constituted it a nui

sance.

In Woodring v. Forks Township, 28 Pa. 265, 70 Am. Dec. 134, it was said: "A man who owns the soil on which the public have a highway has a right to enjoy his property in every way that may promote his interest or convenience so that he takes care not to injure the public easement. . . . . He may cut a passage across the road for the purpose of draining his land or leading water to his mill, because the land is his own, and he may use it for all legitimate purposes. But as he has no right to injure the public easement, he is bound, in order to preserve that right, not only to construct bridges over the ditches, where they cross the highways, but also to keep them in repair. The duty of keeping such bridges in repair is as imperative as the original obligation to construct them."

It further appeared in that case that the ditch had not been cut by the appellant charged with the liability for not keeping it in repair, but was cut by a preceding owner. The court held, however, that when appellant continued to use the watercourse across the highway for the use of his mill, thereby rendering a continuance of the bridge necessary, he was liable for the repairs of the bridge. From those facts, and the further fact that the bridge had been kept in repair by the former owner of the mill, an agreement to keep it in repair was implied. To the same effect in Phoenixville v. Phoenix Iron Co., 45 Pa. 135.

499

In Dygert v. Schenck, 23 Wend. 446, 35 Am. Dec. 575, a case was presented to the supreme court of New York where the owner of premises adjacent to a highway dug a raceway

across the public road to conduct water to his mill, and built a bridge across it. Plaintiff's mare fell through the bridge in consequence of the plank flooring being loose, and received injury. The bridge, when built, was a substantial structure, and continued so for a number of years. In the end, however, the bridge was suffered to get out of repair. The court wrote: "In suffering this, the defendant came short of his obligation to the public. Any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers, is a nuisance. . . . . . . . Special damage arising from it, therefore, furnishes ground for a private action, without regard to the question of negligence in him who digs it. . . . . The moment a plank became liable to slide from the bridge, or any other serious difference arose against its safety, as compared with the original unbroken ground the ditch took the character of a nuisance."

In Perley v. Chandler, 6 Mass. 454, 4 Am. Dec. 159, it was likewise held: "If a highway be located over watercourses, either natural or artificial, the public cannot shut up these courses, but may make the road over them by the aid of bridges. But when a way has been located over private land, if the owner should afterward open a watercourse across the way, it will be his duty, at his own expense, to make and keep in repair a way over the watercourse for the convenience of the public, and, if he should neglect to do it, he may be indicted for the nuisance."

500 Judge Dillon, in his Municipal Corporations, section 1032, lays it down, upon authorities cited, that no person, not even the adjoining owner, whether the fee in the street be in himself or in the public, has the right to do any act which renders the use of the street hazardous, or less secure than it was left by the municipal authorities; and that, if the adjoining owner undermines the street by placing unauthorized obstructions therein which make the use of the street unsafe or less secure, he is guilty of a nuisance, and is liable to any person who, using due care, sustains any special injury therefrom. He declares: "The ultimate liability in such cases is upon the author or continuer of the nuisance. To the same effect is Stephani v. Brown, 40 Ill. 428; Matheny v. Wolffs, 2 Duvall, 137.

The next proposition asserted by appellant is that appellee was injured while she was playing in the street, and cannot

recover for injuries received while so engaged. The great weight of authority, as well as the common sense of the matter, is that children may use the public streets of a city for pleasure as well as grown persons may. If an adult were walking along a street idly, or merely in the pursuit of pleasure, or were driving along a street for a similar purpose, and was injured by a negligent defect in a street, it could scarcely be maintained that he could not recover for his injuries. So long as such use does not impinge upon the rights of others to use them, such users are equally within the protection of the law, and hence equally entitled to have them in as rea sonably safe condition as those who are using them as travelers or in pursuit of business. Indeed, we know of no rule of law that gives precedence to those engaged upon business over those in pursuit of pleasure, in the rightful use of the public 501 highway. In crowded cities the use of the public streets and alleys for purposes of recreation and pleasure by children and others may be regarded as public necessities. We fail to perceive why, if a horse, being used on a public street for the purpose of pleasure, may be recovered for if injured because of the defective condition of the street, a child playing upon the street may not recover for injuries to itself from the same cause: McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668; Chicago v. Keefe, 114 Ill. 222, 55 Am. Rep. 860, 2 N. E. 267; Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155.

In Gibson v. Huntington, 38 W. Va. 177, 45 Am. St. Rep. 853, 18 S. E. 447, 22 L. R. A. 561, the court expressed the idea in this language: "Poor parents are unable to provide a place of healthful exercise and play for their children, for it requires all their earnings to clothe, feed and shelter them. The law prohibits them, under the penalty of being trespassers, from entering on the lands of others; and now to forbid them to use the road to its utmost boundary for the purpose of play, when not interfering in any manner with the traveling public, would savor too much of the Dark Ages of barbarism, when children were subject to inhuman diabolical punishments, and their lives were at the mercy of those hav ing charge over them. The roads are the only commons children now have, and to confine them in the narrow limits of their tenement houses would be cruel, unjust and oppressive, blight their young lives, and render their bodies weak, sickly, scrofulous and vile."

In Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733, a seven year old child was injured while rolling a hoop on the sidewalk. The court regarded that this was not per se negligence, 502 and used this language: "It is natural for a child to play, early and late, at home and abroad, going and coming, and everywhere. Because it plays on its travels on the sidewalk, it should not be declared an outlaw, or excluded from the usual remedies of the law." A similar recovery was allowed for the death of a nine year old boy while at play on a street, in the case of Louisville v. Snow's Admr., 107 Ky. 536, 21 Ky. Law Rep. 1268, 54 S. W. 860..

The instructions to the jury are complained of, but they submitted the case under principles set forth above, except that the court told the jury that they could find punitive damages against appellant if the jury should believe from the evidence that the injury was the result of the gross negligence of the defendant. There was no evidence whatever of gross negligence, and that instruction should not have been given. Appellee contends that the amount of the verdict is no more than reasonable compensation, and that a new trial should not be awarded, because the error is harmless. This court has always been reluctant to interfere with the province of the jury in saying what is reasonable compensation for injuries of this kind. Where mental and physical suffering are elements of damages, there is no certain standard by which they may be measured. The common experience, observation, and judgment of a jury of average intelligence are peculiarly adopted to determine such matters. While we might be of opinion that the verdict was no more than would compensate one for the pain endured, and the impairment of his capacity for laboring and earning money, as the result of such an injury, manifestly to do so would be to usurp in a measure the province of the jury in this respect. They may have thought otherwise, and the appellant is entitled to their verdict, and not our judgment instead, 503 upon this subject. If the jury should have found that a less sum was fair compensation, it would not have been within our province to have increased it. We do not feel warranted in this case to say that some part of the verdict returned was not punitive damages. The court submitted that item to the jury. Their verdict was not unanimous. It may have been that some of the jury, or, for that matter, all who did agree to the verdict, may have given some part of it by way of punishment. At any rate,