Bd. of Com'rs of Huntington Cnty. v. Bonebrake
| Decision Date | 02 December 1896 |
| Citation | 45 N.E. 470,146 Ind. 311 |
| Parties | BOARD OF COM'RS OF HUNTINGTON COUNTY v. BONEBRAKE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Whitley county; W. L. Penfield, Judge.
Action by Simon H. Bonebrake against the board of commissioners of the county of Huntington for personal injuries caused by a defective bridge. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Milligan, Whitelock & Cook, for appellant. Marshall, McNagny & Clugston and R. A. Kaufman, for appellee.
This is the second appeal in this cause, the former decision being reported in Bonebrake v. Board, 141 Ind. 62, 40 N. E. 141. The action was by the appellee to recover damages on account of personal injuries sustained in the crushing of a public bridge under the weight of a traction engine upon which he was riding. As will be seen from the report cited, the appellee succeeded on the former appeal, and that one of the questions decided arose upon the action of the trial court in sustaining the demurrer of the board to the evidence. The principle then adhered to was that counties were required to keep such bridges in proper repair, and that a failure to do so, resulting in injury, without contributory negligence on the part of the person injured, subjected the counties to liability for such injury. In the trial, resulting in the judgment from which the present appeal is prosecuted, the lower court followed, in its rulings, the theory upon which said appeal was decided, and the appellee recovered a judgment for $6,500. After the decision of this court in Bonebrake v. Board, supra, it was held by us, in Board v. Allman, 142 Ind. 573, 42 N. E. 206, that no liability rests upon counties for injuries resulting from the failure to repair public bridges; and the appellant now insists that, upon the holding of the latter case, the appellee's complaint stated no cause of action, and that the lower court erred in rendering judgment, upon the special verdict, in favor of the appellee. Opposing this insistence, the appellee urges that the decision upon the former appeal in this cause established “the law of the case,” which must be adhered to, and which determines the sufficiency of the complaint. It is a general rule, many times followed in this state, that a decision of this court shall constitute “the law of the case,” so far as the principle involved is applicable, throughout all stages of the cause thereafter. Hawley v. Smith, 45 Ind. 183;Dodge v. Gaylord, 53 Ind. 365;Kress v. State, 65 Ind. 106;Test v. Larsh, 76 Ind. 452; Railroad Co. v. Reed, 83 Ind. 9;Board v. Pritchett, 85 Ind. 68;Gerber v. Friday, 87 Ind. 366;Board of Com'rs v. Indianapolis, P. & C. Ry. Co., 89 Ind. 101;Rinard v. West, 92 Ind. 359;Anderson v. Kramer, 93 Ind. 170; Armstrong v. Harshman, Id. 216; Davis v. Krug, 95 Ind. 1;Jones v. Castor, 96 Ind. 307;Forgerson v. Smith, 104 Ind. 246, 3 N. E. 866;Walker v. Heller, 104 Ind. 327, 3 N. E. 114;Pittsburgh, C. & St. L. Ry. Co. v. Hixon, 110 Ind. 225, 11 N. E. 285:Machine Co. v. Gray 114 Ind. 340, 16 N. E. 787;Mason v. Burk, 120 Ind. 404, 22 N. E. 119;Nickless v. Pearson, 126 Ind. 477, 26 N. E. 478;Lillie v. Trentman, 130 Ind. 16, 29 N. E. 405;Railway Co. v. Wynant, 134 Ind. 681, 34 N. E. 569;Railway Co. v. Hill, 7 Ind. App. 255, 34 N. E. 646. See, also, 2 Van Fleet, Former Adj. p. 1302; Elliott, App. Proc. 578. In Forgerson v. Smith, supra, it was said: “But where the questions are necessarily involved, and where the conclusion declared could not have been reached without either expressly or impliedly deciding such questions, the judgment on appeal rules the case throughout all its subsequent stages.” Similar expressions of the effect of the rule are contained in many of the cases cited. If, therefore, it is the question decided, the rule of law applied, that shall operate throughout the case, it cannot be important to look to the manner in which that question arose, whether upon demurrer to complaint, answer, or evidence. If the conclusion were otherwise, the rule would easily lose its force, and confusion inextricable follow from holding, upon demurrer to the evidence, that a given state of facts permitted a recovery, while that same state of facts, pleaded in a complaint. constituted no cause of action. We must hold, therefore, that the appellant is precluded by “the law of the case” to insist that the county was not required to keep the bridge in repair, and was not liable for the consequences of its failure to do so. We do not intimate a view of the case if the complaint had been amended or the evidence were different, either as to the performance of the duty to repair or as to the contributory fault of the appellee.
But one other ruling of the trial court is covered by the assignment of errors, and that is in overruling appellant's motion for a new trial, and several objections are made to that ruling. An interrogatory was submitted to the jury asking if “the southeast corner of the bridge sagged down 6 inches immediately prior to the time of the accident,” and it was answered, “No evidence to show what the condition was immediately prior to the accident.” Appellant moved to require the jury to answer said interrogatory more specifically, and that motion was overruled. The testimony of the witness cited as affirming that the bridge, at the corner mentioned, was “sagged down 6 inches immediately” before the accident, was to the effect that, some four years prior to the accident, the bridge had, at the west end, “washed out, until it had settled about 6 or 8 inches at the corner.” This, said witness further testified, was at a time when he repaired the bridge at the west end, where it had washed out. The evidence does not relate to the inquiry either as to the time or the part of the bridge which had sunken down, and there was no error in refusing to require more specific answer to the interrogatory. The weight of the evidence upon the question of the appellee's knowledge of the defective condition of the bridge at the time he drove upon it is discussed by counsel. Appellee testified that he had no knowledge of defects, and it appeared that, prior to the accident, a petition was circulated for signatures in appellee's neighborhood, and was placed in his hands for examination and signature, in which petition it was stated that said bridge was in a defective condition, and it was sought to procure the county board to rebuild it. This statement of the petition was not shown to have been read by the appellee, but, if it had been so testified, the evidence would stand in conflict, and we could not assume the province of the jury in passing upon it.
It is next contended that the answers to interrogatories 31, 35, and 36 were not sustained by the evidence. Said interrogatories, with the answers, were: As we understand counsel for appellant, they support their contention upon this proposition by the evidence that the appellee did not own the engine, was not employed to ride upon or manage it, and was upon it only by the license of those in charge, and that he was therefore guilty of contributory negligence. While it is suggested by appellee's learned counsel that the same evidence of contributory negligence was passed upon in the former opinion of this court, and was held not sufficient to establish such contributory negligence, and that the question made by appellant's counsel is foreclosed by the law of the case, and while this proposition is not questioned by the appellant, it does not appear that one not knowing of a defect in a bridge should forego riding over it, unless he has legitimate business requiring him to do so, or that he might not, without negligence, ride over it for mere pleasure. It is further objected that interrogatory 35 submitted to the jury a question of law, and violated the act relating to special verdicts in the form of interrogatories and answers (Acts 1895, p. 248), in that it was so framed as to require the finding of more than one fact. In our opinion, counsel err in both propositions. There is no question of law involved in the inquiry as to the cause of the bridge's fall, and there was but one fact which was sought from the evidence of the circumstances or conditions. Interrogatory 45 asked: “In what sum was this plaintiff damaged by reason of the injury received by him by the collapse of said bridge?” This inquiry did not seek to elicit more than one fact, nor the statement of a conclusion of law. Counsel merely suggest that it does, and do not offer a reason supporting them. No reason occurs to us for their construction of the interrogatory.
Interrogatory 32 was as follows: “Was the plaintiff, in passing over said bridge, *** exercising such care, caution, and prudence as persons of ordinary prudence would and do exercise under like...
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