Knight v. George Ryan Co.

516 S.W.2d 848, 1974 Ky. LEXIS 175
CourtCourt of Appeals of Kentucky
DecidedDecember 13, 1974
StatusPublished

This text of 516 S.W.2d 848 (Knight v. George Ryan Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knight v. George Ryan Co., 516 S.W.2d 848, 1974 Ky. LEXIS 175 (Ky. Ct. App. 1974).

Opinion

CATINNA, Commissioner.

Christine Knight appeals from a judgment entered pursuant to a jury verdict denying her claim for damages against George Ryan Company, Inc. We reverse because the instructions were erroneous and, therefore, do not pass upon other asserted errors, as it is unlikely they will occur upon a retrial.

Helm’s Hatchery, a feed store, was located at the intersection of Third and Washington Streets in Paducah. Prior to October 3, 1969, George Ryan Company, Inc., pursuant to the terms of a contract with the City of Paducah, was in the process of replacing the sidewalks upon both Washington and Third Streets. The sidewalk had been completed on the Washington Street side of the hatchery; however, on the Third Street side the old sidewalk had been removed and an excavation made preparatory to the placement of forms for the pouring of the new sidewalk. As work progressed along Third Street, Ryan Company placed yellow blinker barricades adjacent to the curb so that automobiles would not be parked in the area of the sidewalk. The spacing of the blinker lights was such that automobiles could be parked between them on the side of the street next to Helm’s Hatchery. There was a front entrance to the hatchery on the Third Street side at the corner nearest Washington Street. The sidewalk area between the street and the entrance, which had been excavated, was smooth dirt. Near the outer edge of the proposed sidewalk there was an iron-rail sidewalk form lying on its side in the excavation area parallel to the street and opposite the Third Street entrance. A staging line used to line up the forms was stretched along the outer edge of the sidewalk and over the iron rail at a height of approximately two to three inches.

[850]*850On October 3, 1969, Christine parked her automobile on Third Street near the entrance to the hatchery. She got out of the automobile and successfully stepped over the iron rail and the staging line and entered the hatchery where she purchased some feed. Upon returning to her automobile she stepped over the railing, but her foot caught in the staging line, causing her to fall.

She filed an action against Ryan Company seeking to recover for damages sustained by reason of the fall, claiming that the company was negligent in the manner in which it maintained the staging line along the area opposite the Third Street entrance to Helm’s Hatchery. She testified that at the time she went into the building she stepped over the iron railing but did not see or encounter the staging line. However,-as she returned to her car she stepped over the rail with her right foot, but her left foot caught in the string and tripped her, causing her to fall on an iron grating. She states that she did not see the string at any time before she tripped and fell, and even after she fell she didn’t see it until she reached down with her left hand and took her foot out. She describes this string as being a “dirty brown in color.” The rail was described as being a “black brownish metal rail.” The color of the string was such that it blended with that of the rail, rendering the string practically indistinguishable. Her explanation of her fall on the return trip is that the rail was lying kind of “catty-cornered,” while the string was stretched in a straight line, and that she successfully entered the store by one route and fell when she returned to her automobile by a different route.

Fred Austin, who operated the hatchery, said that he had been aware of the presence of the string which, as he described it, had been placed there to line up the rail. He said that it was “dark or earthen colored” and that he couldn’t tell the difference in the color of the string and the rail. When Christine fell, Austin went to her assistance and even though he was aware of the presence of the string the colors made it so inconspicuous that he tripped over it.

Richard T. Byrd testified that he had upon occasions observed the string and that it was about the same color as the iron rail.

Ryan claims that the area where Christine fell was under construction and that she had no right to walk across it in order to reach the hatchery. John Arnold, an employee of the Ryan Company and supervisor of the job, readily admitted the presence of the staging line. He further testified that no effort had been made to rope off the area near the hatchery, nor were any signs erected to warn the public of the presence of the staging line. The line had no distinctive markings which would warn anyone of its presence.

The evidence is rather conclusive that everyone involved knew that customers of the hatchery were parking on Third Street and crossing the excavated sidewalk area to the hatchery entrance. Arnold testified that he knew that customers of the hatchery were going back and forth across the excavated. area. He admitted that on the day Christine was injured he had observed numerous people using the same route that Christine did in getting to the hatchery.

Joseph H. Cash, who was working for Ryan Company, testified that he knew people had used the same route employed by Christine and that on the day she was injured he observed several people crossing in this general area. Cash is the only witness who in any wise indicated that precautionary measures had been taken to protect the traveling public. He claims that the area had been marked off with a “phosphate line” (apparently a phosphorescent line). However, he is the only one to testify about the line. Arnold stated that it was not there, and Austin, the hatchery operator, said that at no time had there been a phosphorescent tape or line stretched so as to exclude people from the [851]*851construction site. Austin also testified that cars had been parking on Third Street and people coming into the hatchery by way of the Third Street entrance during all the time Ryan Company was in the process of preparing for the new sidewalk. All of them used the excavated area after work had progressed to that stage.

Ryan Company asserts that it was entitled to a directed verdict because Christine was contributorily negligent as a matter of law and, further, that there was insufficient evidence of negligence on the part of Ryan Company to create a jury issue. However, the evidence establishes a jury issue as to whether Christine saw the stretched staging line at any time prior to the accident. The evidence is not disputed in regard to the brownish, dirty color of the string which caused it to blend into the color of the iron rail to such an extent that its visibility was substantially reduced. We are of the opinion that this evidence was of such character that the court did not commit error in overruling the motion for a directed verdict and, further, that it was justified in submitting the question of Christine’s contributory negligence to the jury. Likewise, the admitted failure of Ryan Company to warn the public of the existence and location of the staging line or to exclude the public from the area created a sufficient showing of negligence on the part of Ryan Company so as to create a jury issue.

Christine complains of Instructions Nos. 1 and 2 as given by the court which read as follows:

“1.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hardin Ex Rel. Hardin v. Harris
507 S.W.2d 172 (Court of Appeals of Kentucky (pre-1976), 1974)
Gnau v. Ackerman
179 S.W. 217 (Court of Appeals of Kentucky, 1915)

Cite This Page — Counsel Stack

Bluebook (online)
516 S.W.2d 848, 1974 Ky. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-george-ryan-co-kyctapp-1974.