Bd. of Comm's of Sullivan Cnty. v. Sisson
| Citation | 28 N.E. 374,2 Ind.App. 311 |
| Parties | Board of Commissioners of Sullivan County v. Sisson. |
| Decision Date | 18 September 1891 |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from circuit court, Sullivan county; J. C. Briggs, Judge.
Action by Ella J. Sisson against the board of commissioners of Sullivan county for damages caused by a defective bridge. Judgment for plaintiff. Defendant appeals. Affirmed.Beasley & Williams and J. T. Hays, for appellant. Buff & Bays, for appellee.
This was an action by the appellee against the appellant to recover damages for alleged negligence on the part of the appellant in suffering a public bridge to become and remain out of repair, by reason of which the appellee, in driving over it, was injured, without fault or negligence on her part. The appellant answered in four paragraphs, the first of which was the general denial. The third paragraph of the answer was, upon demurrer, held to be bad, and exception taken. The reply was a general denial. The cause was tried by the court, and, upon the appellant's request, a special finding of facts was made, with statement of conclusions of law. To the conclusions of law the appellant excepted, and thereupon the court rendered judgment in favor of the appellee for $500. The appellant has assigned as error- First, the overruling of the demurrer to the complaint; second, the sustaining of the demurrer to the third paragraph of the answer; third, in the statement of the conclusions of law.
The facts, as they appear in the pleadings and special finding, so far as we deem it material to recite them, may be stated as follows: As a part of a public highway in Sullivan county, there has been for over 25 years a bridge, 12 feet wide and 23 feet long, the approaches included, over a small stream known as the “West Fork of Mariah Creek.” The trustee of the township in which said bridge is situate rebuilt said bridge in the year 1881, at a cost of less than $50, and when so rebuilt, it had bannisters on both sides. In October, 1888, the appellee, with her husband, undertook to drive over and across said bridge in a one-horse buggy; the horse, which was reasonably safe and gentle, being driven by her husband in a careful manner. When they had passed almost to the west end of the bridge, the horse scared at a crooked log which was about 16 feet long, having upon it spots of yellow color calculated to frighten a horse. Said log extended west from the southwest corner of said bridge for the purpose of keeping the earth at the west end of the bridge from washing away. Said log had been placed there by the road supervisor in October, 1888. The horse, when he scared, shied towards the right, at the same time backing the buggy to the north edge of the bridge, where there was no railing, and had not been since June, 1887; and the appellee, her husband, the horse and buggy, were precipitated into the creek below, and the appellee thereby injured in her head and other parts of the body without fault or negligence by her or her husband. In May, 1888, Charles Scott and James Nash, who then and there, and at the time of the trial, were members of the board of commissioners of said county, crossed over said bridge, but did not notice or observe that the railing was off on the north side. It was because of the horse being frightened, and the absence of a proper railing to the north side of the bridge, that said accident and injuries occurred. By reason of the injuries received by the appellee, she was damaged in the sum of $500. Counsel for appellant contend that, upon the averments of the complaint, as also upon the facts specially found by the court, the appellee has no cause of action against the appellant. The decisions of the supreme court have firmly settled the question of the liability of counties in this state for a negligent breach of duty respecting public bridges. That counties are liable for negligence in constructing or maintaining bridges upon public highways is no longer an open question. Board v. Montgomery, 109 Ind. 69, 9 N. E. Rep. 590, and many cases there cited; Board v. Pearson, 120 Ind. 426, 22 N. E. Rep. 124; Harris v. Board, 121 Ind. 299, 23 N. E. Rep. 92; Board v. Washington Tp., 121 Ind. 379, 23 N. E. Rep. 257. Counties are held liable, under the rulings in this state, for injuries resulting from defective bridges on public highways, because the statute expressly lays the duty of keeping bridges in repair upon the several boards of commissioners, and provides them with ample means for performing the duty. Abbett v. Board, 114 Ind. 61, 16 N. E. Rep. 127; House v. Board, 60 Ind. 580;Board v. Emmerson, 95 Ind. 579; Rev. St. 1881, §§ 2885, 2886, 2892. It is the duty of county boards to repair, or cause to be repaired, bridges on the public highways of the county; and they are under obligation to the public to exercise a reasonable degree of affirmative and active diligence, to ascertain the condition of the public bridges of the county, and see to it that such bridges, and the approaches thereto, are kept in repair, and reasonably safe and fit for travel. Board v. Legg, 110 Ind. 479, 11 N. E. Rep. 612. The duty thus resting upon the county boards extends to the approaches of the bridges, and also to railings, where the same are needed to make a bridge reasonably safe for travel by those who exercise ordinary care. Board v. Deprez, 87 Ind. 509.
The duty imposed by section 2892, Rev. St. 1881,1 upon county boards to keep bridges or public highways in repair, is not removed by the act of 1885.2 The provisions of that statute do not relieve the county from the duty of maintaining county bridges. The right of control is not in the township, but in the county. Board v. Arnett, 116 Ind. 438;3 Board v. Washington Tp., supra. So long as these decisions are adhered to, the third paragraph of the answer must be held to be bad. We do not deem it necessary to recite the provisions of the act of 1885, nor to restate the sound reasoning of the supreme court in relation thereto. Actionable negligence involves the breach of a legal duty. The question presented, therefore, is, do the facts declared by the complaint, and the special finding-for we think they may both be considered together-sufficiently show that there was on the part of the appellant a negligent breach of duty which resulted in the injury to the appellee of which she complains? We think it is sufficiently averred in the complaint, and established by the facts specially found, that the appellee was not guilty of contributory negligence.
Counsel for the appellant contend that the fright of the horse was one of the causes of the injury, and that, therefore, the appellee has no cause of action; that, although negligent inattention on the part of the appellant to needed repairs in the bridge may have concurred with the fright of the horse to produce the injury, there can be no recovery by the appellee in this action. In other words, that the fright of the horse absolves the appellant from all liability for the injuries sustained by the appellee. We have, after careful attention to the able argument of counsel, arrived at a different conclusion. The appellant was bound to use ordinary care and reasonable diligence in maintaining the bridge: the appellee was entitled to such protection as that care and diligence would afford,-nothing more and nothing less. Counsel for the appellant have cited us to the case of Board v. Rickel, 106 Ind. 501, 7 N. E. Rep. 220. That was a case where the horse became frightened at a plank standing upright in the bridge, and, without entering upon the bridge at all, suddenly leaped backward, and turned over the carriage, throwing the appellee upon the ground, and injuring her. It will be found, upon reading the opinion in that case, that much importance is attached to the fact that the bridge was not in actual use by the complaining party at the...
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