servants of the sewerage commission in failing to light the hole or barracade it, his injury occurred.

The question to be determined is was the city liable for the negligence of the servants of the sewerage commission? In Smith's Admr. v. Commissioners of Sewerage, 146 Ky., 562, and in Jones & Co. v. Ferro Concrete Construction Co., 154 Ky., 47, we held that the sewerage commission is not responsible for the negligence of its servants, and under the rule laid down in those opinions no action lies against the sewerage commission for the injuries here sued for. But it is insisted that although the sewerage commission is not liable, the city has charge of its streets and is liable if a hole is negligently left in the street.

The sewerage commission is a distinct and independent corporation created by the act of February 19, 1906 (Ky. Stats., Sec. 3037b). The purpose of the act was to secure for the city an adequate system of sewers for the protection of the public health, the money being provided by an issue of bonds upon a vote of the people. Sections 10 and 15 of the act, provide:

"And when any portion of said sewerage system shall be complete and ready for active operation, the commission shall restore the street, alley or other public way through which said completed work extends, to its original condition as near as practicable, and then notify the board of public works and turn over said completed portion to such board, and the same shall thereafter be under the exclusive control of said board of public works." (Sec. 10.)

"Section 2825 Kentucky Statutes, vesting a certain exclusive control in the board of public works, shall, to the extent that it conflicts with this act stand repealed; provided, that such exclusive control of the board of public works shall attach and thereafter continue as provided in section 10 of this act." (Sec. 15.)

Section 2825 Ky. Stats., which is thus suspended during the construction of a sewer on any street, is as follows:

"The board of public works shall have exclusive control over the construction, reconstruction, cleaning, repairing, platting, grading improving, sprinkling, lighting and using of all streets, alleys, avenues, lanes, markethouses, bridges, sewers, drains, wells, cisterns, ditches, culverts, canals, streams and water courses, sidewalks, curbing and the lighting of public places.'

It will thus be seen that by the terms of the act the board of public works is divested of control over the street while the sewerage commission has charge of it for the purpose of constructing the sewer and until it notifies the board of public works and turns over the completed portion to the board of public works. The act was declared constitutional in Miller v. City of Louisville, 30 R., 664, and its clear purpose was to divest the city of the control over the street while the sewerage commission was constructing a sewer in it, in order to prevent conflicts of authority and to give the sewerage commission a free hand in the construction of an adequate system of sewers as contemplated by the act. The board of public works is the arm of the city government having charge of the city streets, and when the control of the street is taken from this board and vested in an independent corporation over which the city has no control, it is hard to see upon what principle the doctrine of respondeat superior can be applied; for it is the manifest purpose of the act to make the sewerage commission independent of the city authorities. In Belvin v. City of Richmond, 85 Va., 514, the court had ropes stretched across the street that the business of the court might not be disturbed. A lady driving down the street in a buggy was injured by the ropes which had been negligently left in the street after the court adjourned. The city was held not liable. In Barnes v. District of Columbia, 1 McArthur, 322, Congress authorized a railroad company to extend a branch of its road, and the plaintiff was injured by falling into an unlighted excavation made by it. It was held that the district was not liable. So in Cox v. City of Philadelphia, 165 Fed., 559, it was held that the city was not liable where it had no control of a work done by a contractor. We do not see how a different rule can be applied here.

In addition to this, in the cases above referred to, it is distinctly held that the sewerage commission is a governmental agency, and we have repeatedly held that the city is not liable in damages for the negligence of its officers acting as a governmental agency. In Pollock v. Louisville, 13 Bush, 221, it was held that the city was not liable for the wrongs done by its policemen and in Greenwood v. Louisville, 13 Bush, 226, it was held that the city was not liable for an injury done by the negligence of its fire department. These cases have been followed since in a long line of decisions. In Twyman v. City of Frank

fort, 117 Ky., 518, it was held that the city was not liable for the negligence of its servants at a pest house. In Schwalk's Admr. v. City of Louisville, 135 Ky., 570, it was held that the city was not liable for negligence in maintaining its city hall. In City of Louisville v. Bridwell, 150 Ky., 589, many other cases on the subject are collected. In Braunstein v. City of Louisville, 146 Ky., 777, the plaintiff was injured on a street by a rock falling upon him which had been thrown in the air by a blast negligently fired by the city authorities at the city workhouse. It was held that the city was not liable for the reason that the maintenance of the workhouse was a governmental function. The doctrine announced in these cases has been so often adhered to by this court that it is no longer an open question. The circuit court on the evidence should have instructed the jury peremptorily to find for the defendant.

Judgment reversed and cause remanded for further proceedings consistent herewith. Judge Turner dis

sents.

1.

2.

East Tennessee Telephone Company v. Jeffries.

(Decided June 4, 1913.)

Appeal from Fayette Circuit Court.

Master and Servant-Evidence Upon Another Trial.-Upon another trial appellant may prove any fact connected with appellee's use of the ladder that may tend to show his knowledge of its defective condition before or when the injury was received. Master and Servant-Evidence-Instructions. In addition to the instructions set out in the opinion, the jury should be directed to find for defendant unless they believe from the evidence the ladder broke or by reason of its defective condition came apart.

GEORGE C. WEBB for appellant.

FALCONER & FALCONER, MAURY KEMPER and CHESTER D. ADAMS for appellee.

RESPONSE EXTENDING OPINION BY JUDGE SETTLE (For Original Opinion, See 153 Ky., 133).

It will be competent for the appellant on another trial of this case, by a cross examination of appellee or through other witnesses, to prove that he used the ladder by which

vol. 154-9.

1

he was injured in previously installing or removing other telephones; and also any other fact connected with his use of the ladder that may tend to show his knowledge of its defective condition before or when his injury was received.

Besides the instructions set out in the opinion the court should give following No. 1, this additional instruction:

"If the jury believe from the evidence that the ladder did not, by reason of any defective condition, either break or come apart, they should find for the defendant." The opinion is extended in the particulars indicated.

City of Louisville v. Hayden.

(Decided June 4, 1913.)

Appeal from Jefferson Circuit Court.

Damages-Personal Injuries Sustained in Falling Through Cellar Door-When City and Trustees of Church Not Liable.-A cellar door at the side of a building which extends out on the sidewalk and extends up to the building, being higher at the building than at the sidewalk, is not placed there for the purpose of persons standing on it and looking into the building. Neither the trustees of the church nor the city are liable to persons thus standing on the cellar door for the purpose of watching the proceedings in the church, and injured by the falling of the cellar door, from its giving away under the weight put upon it, although the cellar door was in a defective condition.

BENNETT H. YOUNG, HUSTON QUIN and MARION W. RIPY for appellant.

O'DOHERTY & YONTS for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSON— Affirming in part and reversing in part.

The Calvary Baptist Church maintains a mission on the north side of Walnut street west of Twenty-eighth street in Louisville for colored people. The building sets back about three feet from the line of the street, and there is a cellar door extending from the building out upon the sidewalk, the cellar door being about five feet long and about twenty-five inches of the door being according to the weight of evidence, within the line of the

street. The cellar door is higher at the building than at the other end. There are no hinges upon it; the end next to the church rests upon timbers nailed to the side of the wall, and when the door is used it is simply lifted off. In June, 1909, they were holding a religious revival, and it was customary for people in the neighborhood, both white and colored, to gather around the church and look in at what was going on. In order to see better they frequently stood on the cellar door. On the night of June 24th, quite a crowd had gathered there for sometime, and about nine o'clock, among them was Loraine Hayden, a little girl about five or six years old. Loraine was standing on the cellar door near the building, and near her was Mrs. Minnie Bessels, who weighs something over two hundred pounds. There were two or three other persons standing on the door or standing on the frame on which it rested. The door gave way at the end next to the building and fell through into the cellar. The little girl and Mrs. Bessels fell into the hole. The child was seriously hurt and this suit was brought against the city of Louisville and the trustees of the church to recover damages for her injuries. At the conclusion of all the evidence the court instructed the jury peremptorily to find a verdict in favor of the trustees of the church, and submitted the case to the jury as to the city. The jury returned a verdict in favor of the child for $1,000. The court entered judgment on the verdict and overruled the city's motion for new trial; the city appeals.

According to the evidence for the plaintiff the cellar door was in a rotten decayed condition, and this by casual inspection a passerby could readily discover; and according to the plaintiff's evidence Mrs. Bessels and the child were the only two people on the door, but according to the evidence for the city, there were other people on the door so that the entire weight upon it was about 800 pounds, and this forced off the timber nailed to the wall upon which the door rested, and thus caused it to fall. There was sufficient evidence of the rotten condition of the door to take the case to the jury, if the accident had happened in the ordinary use of the street. The proof conduces strongly to show that the child was really standing beyond the line of the street, but as there is some confusion in the evidence on this subject, we will treat the case as though she was within the line of the street, but was using the cellar door to stand on for the purpose of looking into the windows of the church. The