Alexander v. Town of New Castle

• Decision Date: 29 May 1888
• Citation: 17 N.E. 200,115 Ind. 51
• Parties: Alexander v. Town of New Castle.
• Court: Indiana Supreme Court

115 Ind. 51

17 N.E. 200

Alexander

v.Town of New Castle.

Supreme Court of Indiana.

May 29, 1888.

Appeal from circuit court, Henry county; Mark E. Forkner, Judge.

Brown & Warner and Hernly & Brown, for appellant. Brown & Brown, for appellee.

Niblack, C. J.

This was an action brought by Harvey W. Alexander against the town of New Castle, for injuries alleged to have resulted from negligently permitting a sidewalk to be out of repair. The first paragraph of the complaint charged that the town allowed a pit to be dug, or an excavation to be made in the side of one of its streets, and wrongfully and negligently suffered and permitted such pit or excavation, with full knowledge of its dangerous character, to remain open and uninclosed, whereby the plaintiff, without any fault on his part, fell into the same, and was injured. The second and only other paragraph contained some additional averments not material to any question involved in this appeal. The town answered,- First, in denial; second, that one Heavenridge was found upon one of its streets in possession of a gaming apparatus; that the plaintiff engaged with the said Heavenridge in a game of chance for the purpose of procuring evidence against him, and causing his arrest; that thereupon the plaintiff filed his affidavit before a justice of the peace, charging Heavenridge with gaming, and obtained a warrant for the latter's arrest; that the plaintiff then induced the justice to appoint him a special constable to make the arrest, which he made accordingly; that the justice, after hearing the evidence, adjudged Heavenridge to be guilty as charged, and ordered him to be committed to the jail of the county; that the plaintiff, as such special constable, proceeded to take Heavenridge to jail as ordered, and, in doing so, attempted to pass the pit or excavation in question; that when opposite the same, Heavenridge seized the plaintiff and threw him into the pit or excavation, whereby he was injured as charged in the complaint; that by this means Heavenridge was enabled to escape from the custody of the plaintiff. A demurrer to the second paragraph of answer, for the alleged insufficiency of its facts as a defense, was overruled, and a trial terminated in a verdict and judgment for the town, the defendant below.

Complaint is first made of the overruling the demurrer to the second paragraph of the answer, and this complaint is based upon the claim that as the pit or excavation, so wrongfully and negligently permitted to remain open and uninclosed, afforded Heavenridge the opportunity of throwing the plaintiff into it, as a means of escape, it was, in legal contemplation, the proximate cause of the injuries which the plaintiff received. However negligent a person or a corporation may have been in some particular respect, he or it is only liable to those who may have been injured by reason of such negligence, and the negligence must have been the proximate cause of the injury sued for. Where some independent agency has intervened, and been the immediate cause of the injury, the party guilty of negligence in the first...