Bd. of Com'rs of Jackson Cnty. v. Nichols

• Citation: 139 Ind. 611,38 N.E. 526
• Parties: BOARD OF COM'RS OF JACKSON COUNTY v. NICHOLS.
• Decision Date: 16 October 1894
• Court: Indiana Supreme Court

139 Ind. 611

38 N.E. 526

BOARD OF COM'RS OF JACKSON COUNTY

v.NICHOLS.¹

Supreme Court of Indiana.

Oct. 16, 1894.

Appeal from circuit court, Orange county; S. B. Voyles, Judge.

Action by Laura E. Nichols against the board of commissioners of Jackson county for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.B. H. Burrell, W. Farrell, and M. S. Mavity, for appellant. New & Munden, for appellee.

HACKNEY, C. J.

The appellant prosecutes this appeal from a judgment of the circuit court in favor of the appellee on account of personal injuries alleged to have been sustained from the defective construction of a highway bridge in Jackson county.

The first alleged error presented is the action of the lower court in overruling appellant's motion to require the complaint to be made more specific. The first specification of the motion asked that the complaint allege the name of the stream over which said bridge was constructed. The argument is that no authority existed to construct, and there was no duty to repair, bridges, except those over a stream or water course, and that without the name of the stream it could not be learned that the bridge in question was one over which the appellant had control. We are unable to believe that the name would determine the question urged by the appellant. If the premises stated were correct, the name would not supply the place of an affirmative allegation that the bridge spanned a water course. The second specification asks that the complaint allege who was driving the team at the time of the accident. The purpose of the fact sought, it is said, was to enable the appellant to impute the possible negligence of the driver to the appellee. The complaint alleged that “the plaintiff and her husband, Willard Nichols, a good and careful teamster, were driving,” etc. While it may appear to have been unusual for two persons to be engaged at one time in driving a team of horses, it is nevertheless so alleged, and it is never the province of the court to require a fact stated to be denied or cast in doubt by adding a contradictory fact. If both were driving, and the appellee was required to negative the possible negligence of her husband, the proposition would arise upon demurrer, and not upon the motion. The third specification sought to have the location of the bridge stated, “whether in the city of Seymour or in the township of Jackson.” The object claimed for this specification was to enable the appellant to learn whether the bridge was one that the city should maintain, or one that the township was required to maintain. It was alleged that the bridge formed and constituted a part of a public highway “leading into the city of Seymour,” and at or near the city limits or the south of said city of Seymour. From this allegation it appears sufficiently that the bridge was not within the city. If within a township, that fact would not, of itself, exempt the county from its obligation to maintain it in a condition of safety for public travel. Board v. Sisson, 2 Ind. App. 311, 28 N. E. 374;Vaught v. Board, 101 Ind. 123; Board v. Arnett, 116 Ind. 438, 19 N. E. 299;Board of Com'rs v. Washington Tp., 121 Ind. 379, 23 N. E. 257. The fourth specification sought the date of the construction of the bridge by the county. This specification is not urged with seriousness, and the fifth is conceded to be the same as the third. We find no error in ruling upon the motion.

It is next insisted that the court erred in overruling appellant's demurrer to the complaint. It is first urged that, as the appellant can only act and speak by its record, it was necessary to allege that the bridge in question was located and constructed pursuant to proceedings regularly conducted and recorded. If the bridge was one which the appellant was authorized to construct, it became its duty, under the statute (Rev. St. 1894, §§ 3275-3282; Rev. St. 1881, §§ 2885-2892), to maintain it in a condition of reasonable safety for public travel, without regard to the question as to whom or by whom it was constructed, or whether there was a record of its construction. Board v. Bailey, 122 Ind. 46, 23 N. E. 672;Board v. Brod, 3 Ind. App. 585, 29 N. E. 430;Board v. Castetter, 7 Ind. App. 309, 33 N. E. 986, and 34 N. E. 687;Commissioners v. Blair (Ind. App.) 36 N. E. 216. The duty expressly enjoined by the statute is not upon the condition that the county proceeded regularly to construct the bridge. If one is injured by a neglect of this duty, a liability cannot be made to depend upon the condition of the records of the county board, for a neglect in recording would permit the board to excuse itself from liability for one act of negligence by showing that it had been guilty of another act of equal negligence.

Again, the appellant insists that it was necessary to allege facts showing that the bridge was not one over which the township had control. This proposition is fully answered by the cases first cited in this opinion. However, it is expressly alleged that the bridge in question was constructed by the appellant, and there is no room for the presumption that it may have been a township bridge.

It is suggested that the complaint should have alleged that the bridge in question was over a water course. The pleading was not drawn with care, but it appeared with sufficient certainty that the bridge was over a stream. In the sense in which the word is employed in the pleading, it can have but one meaning, and that is a continuous course of flowing water. As such, it is a water course, and, as said in Board v. Wagner (at the present term) 38 N. E. 171, whether natural or artificial, it is within the meaning of the statute above cited.

It was alleged that the bridge was 40 feet in length and but 12 feet in width, and without guards or balustrades; that while the appellee was proceeding across the same in the nighttime, and while it was dark, and not having any knowledge of the existence of said bridge, though proceeding without fault on her part, one of the horses fell over the side of said bridge, and drew the wheels on the left side of the wagon off the bridge, throwing the appellee out into the stream below, and inflicting the injuries complained of. In addition, it is alleged that “she was in all things careful and cautious, and in no way at fault.” Appellant's counsel insist that the facts so specially pleaded show contributory negligence on the part of the appellee, overcoming the general allegation of noncontributory negligence. The special fact urged as contributory negligence is in traveling a strange road in the darkness of the night. One is not required to forego traveling upon a public highway or bridge, even if he have knowledge of dangers in so doing, and his duty is to use care in proportion to the known dangers, and the degree of the care used is a question for the jury. Board v. Castetter, supra; Turnpike Co. v. Jackson, 86 Ind. 111;Jonesboro Co. v. Baldwin, 57 Ind. 86. It must be conceded that public highways and bridges are constructed for use by both daytime and nighttime, and by those acquainted as well as those unacquainted with them; and if those acquainted with the dangers of a bridge need not forego its use, much less should one not acquainted with such dangers. The allegation is that she exercised care, and was free from negligence. We cannot say, in the face of this allegation, that she proceeded with undue speed, that she did not exert her faculties of sight, or that she failed to do anything that prudence would suggest. We can only say that she did not forego traveling over the bridge, and this, of itself, was not necessarily negligence.

The complaint describes appellee's injuries from the fall as follows: “Wounding and bruising her about the face, body, and limbs, and injuring permanently the organs of the abdominal cavity; and especially did she in said fall, sustain great and permanent injury to her womb and ovaries, and to her spine, and to her nervous system generally.” From these numerous distinct injuries the appellant's counsel set apart that alleged to have resulted to the womb and ovaries, and insist that these organs are so shielded as to make it impossible that they should be injured in the manner alleged, and from such premises it is concluded that the complaint states no cause of action. If we were to concede the premises, we should find it difficult to overlook or brush aside the several other serious injuries alleged. What reason may exist for the conclusion that such other injuries, if not accompanied by that criticized, would not furnish the basis for damages, counsel have not advised us, and we confess that we have not detected.

It is objected further that the complaint does not connect the injuries with the defective condition of the bridge. It is essential, as counsel argue, that the injuries should have been shown to have resulted proximately from the defective condition of the bridge. Harris v. Board, 121 Ind. 299, 23 N. E. 92. But the falling of the horse from, and the dragging of the wagon wheel over the side of, the narrow and unguarded bridge, by which the appellee was precipitated to the stream below, as alleged, sufficiently connects the injuries to the defects as their immediate cause.

Complaint is made of the action of the trial court in sustaining the appellee's demurrer to the appellant's third paragraph of answer. The answer alleged that the bridge was not over a running stream; that it was constructed by township officers, and was located over a private ditch; and that the proper township officers had sufficient funds to maintain said bridge. As to the allegations that the bridge was not over a water course, and that it was not constructed by the county, they were,...