Apple v. The Board of Commissioners of Marion County
| Citation | 27 N.E. 166,127 Ind. 553 |
| Decision Date | 04 April 1891 |
| Docket Number | 14,699 |
| Parties | Apple v. The Board of Commissioners of Marion County |
| Court | Supreme Court of Indiana |
From the Marion Circuit Court.
The judgment is reversed, with instructions to grant a new trial.
W. W Woollen, for appellant.
F. J Van Vorhis and W. W. Spencer, for appellees.
Appellant filed a claim for $ 2,074.85 before the board of commissioners of Marion county, for injuries which he claimed to have sustained in person and property by the breaking down of a certain bridge, which he alleged had been allowed to become unsafe and dangerous by reason of the negligence of appellee.
The board allowed him $ 25 and rejected his claim for the balance. He appealed to the circuit court where the case was tried by a jury and a verdict returned for the appellee. The questions presented here arise on the motion for a new trial made by appellant and overruled by the circuit court.
On the trial of the cause the appellant asked one of his witnesses the following question relative to the bridge:
Q. "Did you make a casual examination of it?"
The witness answered:
On cross-examination of this witness the following questions were asked and answers given:
Q. "I will ask you if you ever heard anybody talk about that bridge out there, that did not consider it unsafe?" A.
Q. "I understand you by that, that whenever you heard that bridge mentioned or spoken of, it was regarded by them who talked of it as unsafe?" A. "Yes, sir, I never heard it spoken of as a good bridge."
Q. "That is not the question; the question I asked you--I understand you, that whenever you heard that bridge spoken of it was regarded by those who talked of it as an unsafe bridge?" A. "Yes, sir."
Appellant objected to the cross-examination and insists that the court erred in permitting it. We think otherwise. The witness, on direct examination, did not content himself with answering the question, but volunteered a statement not called for. Appellant might have disclaimed this and had it stricken out. He did not do so, and the cross-examination was not improper as addressed to the volunteer statement. Having allowed the statement to go to the jury without objection he can not complain that the court allowed cross-examination relative to the same matter.
The court, at the request of the appellant, gave to the jury the following instruction:
This instruction stated the law correctly. The court then, of its own motion, gave to the jury the following instruction:
"I have heretofore instructed you that the board of county commissioners are chargeable with the knowledge of the tendency of timbers to decay; and I now charge you that if you find from the evidence in this case that the plaintiff was acquainted with this bridge, and knew the kind of timbers of which it was constructed, and knew how long such timbers (that were in the bridge at the time of the accident) had been in the bridge, then the plaintiff is also chargeable with knowledge of the tendency of such timbers to decay incident to age and long use."
It may be said that all persons are, in a certain sense, chargeable with knowledge of the tendency of timbers to decay as an incident of age and long use, as it may be said all persons are supposed to know of the tendency of water to run down hill. Both are matters of common knowledge.
Boards of county commissioners are, however, charged with certain duties with reference to the construction and maintenance of bridges, which require them to take notice of the tendency to decay in materials composing them in a sense not required of others. Knowing, as they must, in common with all others, of such tendency, the law makes it their duty to use ordinary care and diligence in informing themselves of their condition, and in providing against danger to the travelling public by reason of such tendency to decay.
The traveller is charged with no such duty. As a rule, the traveller, approaching a bridge, has a right to assume that the officers charged with its erection and maintenance have done their duty, and that he can pass over it in safety. Unless he has from some source information of probable defects he is not required to inspect it, provided he is proceeding in the ordinary way and with no unusual load. Acquaintance with the bridge, knowledge of the kind of timbers of which it was constructed, or of the length of time they had been in the bridge, would not necessarily, nor of themselves, be...
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