Bd. of Comm'rs v. Bailey

• Decision Date: 31 January 1890
• Citation: 23 N.E. 672,122 Ind. 46
• Parties: Board of Commissioners v. Bailey.
• Court: Indiana Supreme Court

122 Ind. 46

23 N.E. 672

Board of Commissioners

v.Bailey.

Supreme Court of Indiana.

Jan. 31, 1890.

Appeal from circuit court, Cass county; D. P. Baldwin, Special Judge.

Applegate & Pollard, for appellant. Crane & Anderson, for appellee.

Mitchell, C. J.

This was an action by Bailey, against the board of commissioners of Carroll county, to recover damages for injuries alleged to have been sustained by him in falling from a bridge which it is charged had negligently been suffered to become and remain out of repair, and in a dangerous condition.

The controlling question is whether or not the structure or place from which the plaintiff fell was a bridge, within the meaning of the statute which requires the board of commissioners of each county to cause all the bridges therein to be kept in repair. The facts relating to the character of the structure are undisputed. The witnesses uniformly speak of it as a culvert. It appears that a public highway leading into the village of Camden passes over a ravine or depression some 10 feet or more in depth, and about 75 feet in width, the sides of which incline gradually from the center. Years ago this was filled with earth and gravel, so as to make the surface of the highway level; and in the center an archway was constructed, under the highway, of stone masonry. This was formed by building two parallel walls 5 feet apart, 20 feet long, and 8 feet high, arched over at the top with stone, and covered with earth. The work was done by the township, the owner of the adjacent land contributing from $50 to $75, because the archway afforded a convenient passage-way under the highway for his cattle. There were retaining or wing walls extending from the archway some distance on either side, and there was a parapet about 18 inches high on top of the archway. The parapet had fallen into dilapidation at the time the injury occurred. No water flowed through the ravine or archway, except immediately after hard rains, when surface-water, conducted through a sewer-pipe terminating in an adjacent field 5 or 6 rods from the highway, flowed through the archway. The question in dispute is whether the structure above described constitutes a bridge within the meaning of the statute. The contention on behalf of the county is that the legislature intended to impose upon the boards of commissioners of the several counties the duty of constructing and repairing only such bridges as the inhabitants of a county, at common law, were bound to erect and repair. The word “bridge,” in its ordinary acceptation, denotes a structure of wood, iron, brick, or stone ordinarily erected over a river, creek, pond, or lake, or over a ravine, railroad, canal, or other obstruction in a highway, so as to make a continuous roadway, and afford to travelers a convenient passage-way from one bank to the other. Board v. Brown, 89 Ind. 48;Bridge Co. v. Railroad Co., 17 Conn. 40; And. Dict. Law; 2 Amer. & Eng. Cyclop. Law, 540. By the common law, the inhabitants of a county were only bound to repair bridges erected over water-courses,-such structures as were super flumen vel currena aquæ. Rex v. Oxfordshire, 20 E. C. L. 289; State v. Gorham, 37 Me. 451; Whitall v. Freeholders, 40 N. J. Law, 302; State v. Hudson Co., 30 N. J. Law, 137. As was said in Telegraph Co. v. Scircle, 103 Ind. 227, 2 N. E. Rep. 604: “Where the statute employs common-law terms, having a known meaning, it is presumed, unless the contrary affirmatively appears, that the terms were used in their common-law meaning.” The statute relating to the power of counties over bridges does not, however, leave the kind of structure which a county has the power to build or repair to inference or conjecture. Section 2880, Rev. St. 1881, authorizes county commissioners, whenever public convenience requires “the erection or repair of any bridge across any stream forming the boundary line between two counties,” to take steps to erect or repair such bridge. In respect to bridges within the county, section 2885, Id., provides that “whenever, in the opinion of the county commissioners, the public convenience shall require that a bridge should be repaired or built over any water-course, they shall cause survey and estimate therefor to be made, and direct the same to be erected.” Section 2892, Id., imposes upon the board of commissioners of each county the duty of causing all bridges therein to be kept in repair, and provides for displaying a notice at each end of certain bridges, and prescribes a fine for riding...