
    CASE 42 — ACTION BY JOHN M. WEBSTER. AGAINST THE CITY OF VANCEBURG FOR AN INJURY RECEIVED BY REASON OF A DEFECTIVE SIDEWALK. —
    November 12.
    Webster v. City of Vanceburg
    Appeal from. Lewis Circuit Court.
    S. G. Kinder, Circuit Judge.
    1. Municipal Corporations — Defects in Streets — Sidewalks—Use by Vehicles — Liability for Injury. — A city’s sidewalks are intended solely for the use of pedestrians, and 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, and if drivers use them for passage of wagons they do so at their peril.
    2. Municipal Corporations — Defects in Streets — Sidewalks—Use by Vehicles' — Acquiescence of City. — The fact that sidewalks had been used by vehicles for many years with the acquiescence of the city would not render the city liable for injuries to drivers because the sidewalks were not fit for vehicles.
    3. Municipal Corporations — Defects in Streets — Sidewalks—Use ' by Vehicles — Duty of City to Furnish Roadway. — That the only practicable way for wagons to reach a railroad depot was by using the sidewalk did not render the city liable for injuries to a driver caused by the sidewalk being unfit for such use, as the city was not legally bound to provide a roadway for such purpose.
    Allan D. Cole for appellant.
    1. We submit that the city of Vanceburg and not the C. & O. Ry. Co., is liable in damages to appellant for the injury he sustained from the dangerous and defective sidewalk, unless appellants own testimony showed that he himself was negligent, and but for his own negligence the accident would not have happened.
    2. The uncontradicted evidence shows that he acted prudently and. carefully in loading his dray, and in driving it at the time he was injured, and was not guilty of any contributory negligence that in any way caused his injury.
    C. The sidewalk was in a dangerous condition and had been so for several years, and this condition was well known to the city and its agents and servants.
    R. D. WILSON for appellee.
    AUTHORITIES CITED.
    1. Duties of municipality. (City of Dallas v. Moore, 74 S. W. 95; Brown v. Cnillicothe, 98 N. W. 502.)
    2. Peremptory instructions. (Morris’ Admr. v. L. & N. R. R. Co., 22 Ky. Law Rep. 1593; L. & N. R. R. Co. v. Humphrey’s Admr., 20 Ky. Law Rep. 642; Same v. Wathen, 22 Ky. Law Rep. 88; Louisville Gas Co. v. Kaufman, Straus & Co., 20 Ky. Law Rep. 1069; L. & N. R. R. Co. v. Cox, &c., 8 Ky. Law Rep. 961.)
    3. Negligence. (Deering on Negligence, section 189; Dillon on Municipal Corporations, sections 1006, 1007; Nicholas v. Peck, 20 Ky. Law Rep. 533; City of Richmond v. Courtney, 22 Grat. 792; City of Covington v. Manwarring, 24 Ky. Law Rep. 423; Hubble v. Yonkers, 104 N. J. 434.)
    4. -Want of Repair. (Agnew v. Corruna, 55 Mich. 428; Burn-ham v. Byron, 46 Mich., 555.)
    5. Approaches. (Alline v. LeMars, 71 Iowa, 654.).
   Opinion of the Court by

Chief Justice O’Rear —

Affirming.

The Chesapeake & Ohio Railway freight depot in Vanceburg is situated on Main street, alongside of which is a pavement. The.lay of the land is such that in getting freight into the depot for shipment, and in getting it out for delivery in town, teamsters have for years crossed the pavement in taking their wagons and drays up to the depot building to load and unload freight. Appellant, who was a drayman, loaded his dray with baled hay from the depot, or a car by it, and for that purpose and his own- convenience had driven his dray upon the pavement. In driving off the pavement the . wheels of his dray-dropped off at the pavement curbing, one before the other, which was a foot or more lower at that point than the sidewalk. Prom the jar thus caused appellant was thrown to the ground and sustained a serious injury to his shoulder. He sued the city, because it had neglected to so repair the pavement at that point as to make it reasonably safe for its use by wagons having occasion to go to the freight depot. Upon the evidence showing the foregoing state of facts, the trial court peremptorily instructed the jury to return a verdict for the defendant city, of which appellant complains on this appeal.

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. Nor does the fact that the pavements have been so used by the acquiescence of the city for many years affect its liability in the matter, so far as vehicle drivers are concerned.

It is argued that the way used by appellant was the only practicable way for wagons to reach the depot. Be that as it may, the city was not legally bound to provide a roadway for wagons to the railroad depot, and is not liable for a failure to do so. If the driver of the wagon saw proper to use ways not provided for such, vehicles, he has no legal complaint against the city that they were not fit for the use to which he was' putting them. A city’s legal duty is not to furnish streets, even where they may be needed; but it is to keep such as it does furnish in a reasonably safe condition, for use for purposes for which they are provided — sidewalks for pedestrians; roadways for vehicles and horses.

Judgment affirmed.  