Bd. of Com'rs of Boone Cnty. v. Mutchler

• Decision Date: 20 February 1894
• Citation: 36 N.E. 534,137 Ind. 140
• Parties: BOARD OF COM'RS OF BOONE COUNTY v. MUTCHLER.
• Court: Indiana Supreme Court

137 Ind. 140

36 N.E. 534

BOARD OF COM'RS OF BOONE COUNTY

v.MUTCHLER.

Supreme Court of Indiana.

Feb. 20, 1894.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Action by Mary A. Mutchler against the board of commissioners of Boone county, Ind., to recover for personal injuries caused by a defective bridge. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.O. P. Mahan and Fertig & Alexander, for appellant. P. H. Dutch and Kane & Davis, for appellee.

HOWARD, C. J.

This was an action by appellee to collect damages for injuries alleged to have been caused by a defective bridge constructed by appellant upon a free gravel road. A verdict was returned for appellee in the sum of $5,000, whereupon, a remittitur having been entered for $3,000, judgment was rendered in appellee's favor for $2,000. The cause was originally appealed to the appellate court, where, it appearing that one of the judges had been of counsel in the trial court, and the other judges being equally divided as to the decision proper to be made on the appeal, the cause was transferred to this court, as required by statute, (Acts 1891, p. 39.)

It is urged against the sufficiency of the complaint on demurrer that it is not alleged therein that the bridge was constructed across a water course. A like objection was held insufficient in the case of Board, etc., v. Legg, 110 Ind. 479, 11 N. E. 612. It was contended in that case that since the bridge “was a small one, over an artificial ditch, dug for the purpose of draining wet lands,” therefore it was not a bridge over a “water course,” and the county was not bound to keep it in repair. The court said: “The county board has general supervision over the bridges of the county, and must exercise reasonable care in keeping all bridges upon the public highways of the county in a safe condition, regardless of the size of the bridge or the character of the streams or ditches which they may span. Vaught v. Board, etc., 101 Ind. 123;Board, etc., v. Bacon, 96 Ind. 31;Board, etc., v. Emerson, 95 Ind. 579;Board, etc., v. Brown, 89 Ind. 48.” The accident in the case at bar, as stated in the complaint, occurred in Boone county, Ind., while the appellee was traveling in a buggy drawn by one horse, “upon a certain highway in said county and state, known as the ‘Lebanon & Elizaville Free Gravel Road,’ a public highway in said county and state, * * * established, constructed, and managed by said county;” and it is alleged “that in said highway, and as a part thereof, the defendant had unlawfully and negligently constructed a bridge across and over what is known as the ‘Heath Ditch,’ and which is known and has been as ‘Brown's Wonder.”’ The dimensions of the bridge are given as “forty feet long, about sixteen wide, and eight feet above the ditch and ground from one end to the other of said bridge.” We think the bridge so built across the Heath ditch is one which the board was required to keep in repair, under the provisions of section 2892, Rev. St. 1881, requiring that “the board of commissioners of such county shall cause all bridges therein to be kept in repair.” Not only as a bridge over the ditch, but also as a bridge which was constructed by the county as a part of a free gravel road,-a public highway of said county,-was the board required to see that the bridge was safe for public travel. In State v. Sullivan, 74 Ind. 121, in passing on the question as to a bond from a contractor, as required by section 4246, Rev. St. 1881, it was decided that, when the county board takes charge of the construction or improvement of a free gravel road, the same becomes a “county work,” in the same sense as the building or repair of a courthouse, jail, or other public building. And, in passing on the question of the liability of a township for a part of the expense of maintaining a public bridge connected with a free gravel road, it was said by this court, in the case of Board, etc., of Owen Co. v. Washington Tp., 121 Ind. 379, 23 N. E. 257, that while, in certain cases, a township will be required to contribute to the construction or repair of such a bridge, yet the general duty is imposed upon the county, and the means of performing the duty are vested exclusively in the county officers. The county, therefore, and not the township, becomes liable for a neglect of this duty. See, also, Board, etc., v. Emerson, and Board, etc., v. Bacon, cited above. So, in Board, etc., v. Arnett, 116 Ind. 438, 19 N. E. 299, it was held that counties are liable for damages resulting from neglect in keeping bridges on public highways in repair, without regard to the cost of such repairs, and even though it might be the particular duty of some township or other officer to attend to such matters. Even if the bridge had not been built, but be adopted and used, as a public bridge, the liability attaches. In State v. Demaree, 80 Ind. 519, it was said that “where citizens construct part of a bridge or highway, and the public authorities accept and treat it as a part of the public highway, it will be deemed such, and the rights and obligations existing with reference to it will be the same as though the county officers had themselves built it Shear. & R. Neg. § 246; Ang. & D. Highw. § 38; State v. Town of Campton, 2 N. H. 513; Watson v. Lisbon Bridge, etc., 14 Me. 201.” See, also, Vaught v. Board, etc., supra. In this state the streets of a city or a town are under the control of their respective municipal authorities, and such municipalities are therefore held responsible for the safe condition of the streets, including, also, sidewalks, alleys, and bridges within the corporate limits. In like manner, the boards of county commissioners are charged with the care of the bridges on public highways, and are held liable in damages for neglect of such duty. House v. Board, etc., 60 Ind. 580;Yeager v. Tippecanoe Tp., 81 Ind. 46;Board, etc., v. Pritchett, 85 Ind. 68;Board, etc., v. Deprez, 87 Ind. 509;Board, etc., v. Montgomery, 109 Ind. 69, 9 N. E. 590;City of Goshen v. Myers, 119 Ind. 196, 21 N. E. 657;Spicer v. Board, etc., 126 Ind. 369, 26 N. E. 58. See, also, Elliott, Roads & S. 41 and notes.

It is next contended that the complaint is insufficient for the reason that it is not alleged that the injury was caused by the alleged defect in the bridge. It is alleged in the complaint “that said defendant, in constructing said bridge, unlawfully, negligently, and carelessly failed and omitted and neglected to place at the sides thereof any railing, balustrade, or guards, said bridge being 40 feet long, about 16 feet wide, and 8 feet above the ditch and ground from one end to the other of said bridge, and, after having so unlawfully and negligently constructed said bridge, did unlawfully and negligently permit said bridge to remain in said dangerous condition ever since, and did unlawfully and negligently omit to place on said bridge any railing, guards, or balustrading, or in any way guard the sides of said bridge; that said bridge, constructed as aforesaid, and permitted to remain in such condition, was dangerous for public travel; * * * that while plaintiff was passing over said bridge in a buggy drawn by one horse, in company with her daughter, when about two-thirds of the way across said bridge, her said horse became frightened at a hog that was under said bridge, and, without any fault of plaintiff, backed the buggy in which plaintiff was riding off of said bridge at the side thereof, at a point where there was no railing or guard or any protection to prevent plaintiff's buggy from passing off the side of said bridge, said horse following said buggy, and backing off said bridge at the side thereof, falling upon plaintiff and buggy in which plaintiff was riding; that said horse became frightened without any fault of plaintiff, * * * and, by reason of the negligent and unlawful conduct aforesaid of defendant, did back said buggy and self over and off the side...