Opinion
October 30, 1959.
Appeal from the Circuit Court, Jefferson County, George Broadus, J.
Norris W. Reigler, Louisville, for appellant.
Rudolph V. Binus, Thomas W. Speckman, Louisville, for appellees.
Mintha Alford sued the City of Louisville to recover for injuries sustained as a result of a fall allegedly caused by the dangerous condition of a public street. The street was undergoing reconstruction by the George M. Eady Company in accordance with a contract with the State Department of Highways. The city, seeking indemnity, proceeded against the Eady Company as a third-party defendant. The jury returned a verdict of $250 in favor of Mintha Alford against the city and exonerated the Eady Company.
The city has filed its motion for an appeal and urges that the trial court should have sustained its motions for a directed verdict and for a judgment notwithstanding the verdict. The city relies on the doctrine discussed in Perry v. City of Cumberland, 312 Ky. 375, 227 S.W.2d 411.
Appellant filed its brief on January 23, 1958. The appellee, Mintha Alford, failed to file a brief. No reason is shown for such failure. The case was submitted on April 15, 1958.
RCA 1.260 provides in part:
"If the appellee fails to file his brief within the time allowed, the Court may: (1) Accept the appellant's statement of the facts and issues as correct; or (2) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (3) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case."
See Skaggs v. Ohio Valley Rock Asphalt Co., 292 Ky. 758, 166 S.W.2d 1005.
Since the appellant's brief appears reasonably to sustain a reversal, the motion for an appeal is sustained and the judgment is reversed, with direction to enter judgment in favor of the appellant.