Appellant was handling a dangerous commodity, and the law imposed a duty upon it to exercise ordinary care to prevent or avoid injury to all persons and their property engaged in repairing or reconstructing the road within the boundaries of the State highway, as designated in the condemnation proceeding.
The court sent the case to the jury upon the theory that appellant was liable for damages to the shovel, provided they found from the testimony that it had a pipe line, through which it conveyed gas, within the right-of-way condemned by the county court for a public highway, if it failed to exercise ordinary care to maintain its gas main in a reasonably safe condition for travel, and to take notice of the kind and type of machinery which might be used for the construction of said road and the changes and improvements constantly being made in all classes of road, as well as the machinery used in improving and constructing same. The duty imposed upon appellant by this declaration of law was predicated upon the county court order condemning the land and authorizing the State Highway Department to enter and reconstruct the road within the designated boundaries of the right-of-way. In other words, the court treated the Highway Department and its contractors as being in the lawful possession of the right-of-way, with a superior right to that of appellant to use the surface, or, to state it differently, that appellant's right to occupy the right-of-way with its pipe line was subservient to the right of the Highway Department to repair and reconstruct the road. *Page 529
The rule of law announced by the trial court as applicable to the facts in the instant case is supported by the weight of authority, and I do not understand that the majority opinion contravenes the principle of law enunciated, but asserts that the principle was not applicable. The principle or rule announced was applied to the facts in the case of McWilliams v. Kentucky Heating Company, 166 Ky. 26, 179 S.W. 24, L.R.A. 1916A, 1224. The majority opinion differentiates the instant case from the McWilliams case, and concludes with the statement that the facts in the instant case, according to the undisputed testimony, are insufficient to sustain the verdict and judgment. In interpreting the facts in the instant case the majority opinion, I think, ignores the fact that appellant failed to mark its pipe line so that those rightfully near it might know where it was; and that appellant also failed to notify the Highway Department and the appellee herein of the whereabouts of the pipe line. It knew where its line was, but its deed to the easement for the pipe line did not designate what part of the forty-acre tract it passed through so that others might know from reading it. According to the testimony, it had a line-walker, who passed up and down the line often to ascertain its condition, and who must have seen appellee and his employees working near the pipe line with a large steam shovel that dug into the earth deeper than the pipe line had been buried. Not only had the county court condemned the right-of-way and turned it over to the Highway Department, which extended at least ten feet beyond appellant's pipe line, but the State Engineer had staked off the boundaries of the highway thus condemned. This pipe-line walker must have known that the pipe line was within the right-of-way as staked off by the State Highway Engineer. There can be no question that, had the Highway Department known where the pipe line was and had notified appellant to bury it deeper in the earth, it would have been compelled to do so. This being the case, its right to use the surface was *Page 530 subservient to that of the Highway Department. It could place its pipe deeper in the earth and accomplish the same purpose as where it was. The highway had to use the dirt on the surface to a depth below where the pipe line was buried to fill in the roadbed. I think the burden rested upon appellant to notify the Highway Department and appellee that its line was within the condemned right-of-way for highway purposes, and, after giving the notice, it was incumbent upon it, under the law, to bury the pipe deeper, if necessary. The majority opinion placed the burden of notice upon appellee and the Highway Department, when neither knew where the pipe line was, and when appellant did know its whereabouts, and that it was within the highway boundary as condemned and staked off. Although the facts are somewhat different in the McWilliams case, yet they are no stronger than the facts in the instant case when viewed most favorably to appellee.
For the reasons given I think the judgment of the circuit court should be affirmed.