Park v. Bd. of Com'rs of Adams Cnty.

Decision Date03 February 1892
PartiesPARK et al. v. BOARD OF COM'RS OF ADAMS COUNTY.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Adams county; D. D. HELLER, Judge.

Action by James A. Park and another against the board of commissioners of Adams county for negligently causing injury to personal property. From a judgment sustaining defendant's demurrer, plaintiffs appeal. Reversed.

France & France, for appellants. Erwin & Mann, for appellee.

NEW, J.

This was a claim in the form of a complaint, presented to the board of commissioners of Adams county by the appellants against the appellee, to recover damages for alleged negligence in not properly guarding a certain bridge, at the time being repaired by one Joseph Hendricks under a contract with the appellee. The board of commissioners allowed the appellants on their claim $25, and from this decision the latter appealed to the circuit court, where to an amended complaint a demurrer was sustained and exception saved. Upon the refusal of the appellants to plead further, judgment was rendered against them upon the demurrer for costs. The only question presented to this court upon the appellants' assignment of error is whether the court below erred in sustaining the demurrer to the amended complaint. The substance of the complaint may be thus stated: On the 19th of November, 1889, a bridge 50 feet long, over a water-course in Adams county, was under process of repair by one Hendricks, under a contract with the board of commissioners of said county; said bridge being upon a public highway in said county. On said day, at 9 o'clock P. M., when it was very dark, the appellants' hired hand drove their team of horses upon said bridge, and, not knowing its dangerous condition, attempted to drive across the same. That on the west side of said bridge, where said team entered, a plank floor had been laid for a length of 20 feet, and on the east side, for a distance of 30 feet, there was no floor whatever. That said bridge had been negligently left during said work of repairs without any barricades or lights to warn travelers, and in consequence thereof, without any fault of the appellants or their hired hand, when said team had been driven about 20 feet on said bridge the horses stepped off, and were precipitated to the ground below, a distance of 7 feet, and were thereby crippled, and the harness on them injured, to the damage altogether of $200 to the appellants.

The statute expressly places the duty of keeping bridges upon public highways in repair upon the several boards of county commissioners, and provides them with ample means for performing that duty. Therefore it is that, under the rulings in this state, counties are held liable for injuries resulting from defective bridges. House v. Board, 60 Ind. 580;Board v. Emmerson, 95 Ind. 579;Abbett v. Board, 114 Ind. 61, 16 N. E. Rep. 127; Board v. Pearson, 120 Ind. 426, 22 N. E. Rep. 134; Harris v. Board, 121 Ind. 299, 23 N. E. Rep. 92; Board v. Sisson, 2 Ind. App. -, 28 N. E. Rep. 374. It is also well settled that a traveler upon a street or county public highway, without knowledge of defects in bridges forming parts thereof, and using proper diligence himself, has a right to presume that they are in a safe condition, and to act upon that presumption. Board v. Legg, 110 Ind. 479, 11 N. E. Rep. 612. Is the county liable to the appellants upon the facts stated in the complaint? It may be stated, as a general rule or proposition, that where the injured party attempts to recover for his loss or injuries, against any other than him who is actually guilty of the wrongful act, it can only be on the ground that the relation of principal and agent or master and servant exists; and that, where the injury is done by a party exercising an independent employment, the person employing him is not liable. Ryan v. Curran, 64 Ind. 345;Sessengut v. Posey, 67 Ind. 408;City of Logansport v. Dick, 70 Ind. 65;Hilliard v. Richardson, 3 Gray, 349;Linton v. Smith, 8 Gray, 147;Conners v. Hennessey, 112 Mass. 96;Clark v. Fry, 8 Ohio St. 358;Pfau v. Williamson, 63 Ill. 16;De Forrest v. Wright, 2 Mich. 368; Wray v. Evans, 80 Pa. St. 102; Allen v. Willard, 57 Pa. St. 374; McCafferty v. Railroad Co., 61 N. Y. 178;Hexamer v. Webb, 101 N. Y. 377, 4 N. E. Rep. 755; 1 Shear. & R. Neg. §§ 168-273; Cooley, Torts, 646; Whart. Neg. § 818; 2 Dill. Mun. Corp. § 1028. The general rule, as we have stated it, however, has well-established exceptions. The rule as given will not apply where the work contracted for would be a nuisance or unlawful, nor where the contract directly requires the performance of work intrinsically dangerous, however skillfully performed. Where the particular thing which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor, and authorizes him to do those acts, is equally liable to the injured party. In such cases the negligence is not that of the contractor alone; it is that of the employer also, in directing him, by the terms of the contract, to do an act which in its nature was wrongful; and in such cases the person injured may sue either or both. Neither can any one escape from the burden of an obligation imposed upon him by law by engaging for its performance by a contractor. Whatever he is bound to do must be done, and, though he may have a remedy against his contractor for the failure of the latter to discharge his duty, strangers to the contract are still at liberty to enforce the rights conferred upon them by the law, without noticing the contract. Thus it is now the firmly established doctrine in this country that the duty of maintaining streets in towns and cities in a safe condition for public use and travel rests primarily, as respects the public, upon the municipal corporation to which they belong, and the obligation to discharge that duty cannot by the corporation be evaded, superseded, or cast upon others by any act of its own. If such municipal corporation should so contract for work upon its streets that the doing of the work as contracted for would necessarily constitute an obstruction or defect in the street of such a nature as to render it unsafe or dangerous for the purposes of public travel unless properly guarded or protected, the employer, equally with the contractor, where injury results directly from the acts which the contractor engaged to perform, would be liable therefor to the injured party. 2 Dill. Mun. Corp. §§ 1018, 1027-1030, 1037; Shear. & R. Neg. §§ 176, 297, 298; Robbins v. City of Chicago, 4 Wall. 657;Water Co. v. Ware, 16 Wall. 566. In City of Logansport v. Dick, 70 Ind. 65, it was held that the city could not, by any contract it might make, avoid its liability to third persons for injury or death resulting from a breach of its duty in the care and control of its streets. See, also, Grove v. City of Fort Wayne, 45 Ind. 428; Town of Centerville v. Woods, 57 Ind. 192;City of Crawfordsville v. Smith, 79 Ind. 308;Turner v. City of Indianapolis, 96 Ind. 51,Glantz v. City of South Bend, 106 Ind. 305, 6 N. E. Rep. 632.

It is clear, from the authorities cited, that the obligation of a town or city to keep its streets in a safe condition for the passage of persons and property is a primary one, and the municipality cannot divest itself of this duty. It is also well settled by the greater weight...

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11 cases
  • Moore v. City of Bloomington
    • United States
    • Court of Appeals of Indiana
    • June 6, 1911
    ......Park et al. v. Board of Com'rs, 3 Ind. App. 536, 30 N. E. 147;City of ......
  • City of Hugo v. Nance
    • United States
    • Supreme Court of Oklahoma
    • November 18, 1913
    ...such obligation cannot be relieved therefrom by a contract made with another for the performance of such duty." ¶5 In Park v. Board, 3 Ind. App. 536, 30 N.E. 147, it is said: "It is clear from the authorities cited that the obligation of a town or city to keep its streets in a safe conditio......
  • Moore v. City of Bloomington
    • United States
    • Court of Appeals of Indiana
    • June 6, 1911
    ...... another. Park v. Board, etc. (1892), 3. Ind.App. 536, 30 N.E. 147; City of Indianapolis ......
  • City of Wagoner v. Black
    • United States
    • Supreme Court of Oklahoma
    • December 12, 1939
    ......Thus, in Park v. Board, 3 Ind. App. 536, 30 N. E. 147, it was said:"It is clear from the ......
  • Request a trial to view additional results

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