Board of Comm'rs of Allen County v. Bacon

• Decision Date: 29 May 1884
• Docket Number: 10,923
• Citation: 96 Ind. 31
• Parties: The Board of Commissioners of Allen County v. Bacon
• Court: Indiana Supreme Court

96 Ind. 31

The Board of Commissioners of Allen County v. Bacon

No. 10,923

Supreme Court of Indiana

May 29, 1884

From the Superior Court of Allen County.

T. E Ellison and F. W. Rawles, for appellant.

R. S Robertson and J. B. Harper, for appellee.

Bicknell C. C. Zollars, J., did not participate in the decision of this case.

OPINION

Bicknell, C. C.

The appellee brought this action to recover damages for injuries sustained by the appellant's neglect to repair one of its bridges.

The first error assigned is overruling a demurrer to the complaint for want of facts sufficient. The objection is failure to allege that defendant had notice of the defective condition of the bridge.

Where a municipal corporation is charged with negligence, in permitting its highway or bridge to be dangerous, and the danger is created by the wrongful act of another, the complaint must allege that the corporation had notice of such dangerous condition, or else must state facts from which such notice may be fairly inferred. City of Lafayette v. Blood, 40 Ind. 62; Higert v. City of Greencastle, 43 Ind. 574; City of Ft. Wayne v. DeWitt, 47 Ind. 391; Town of Elkhart v. Ritter, 66 Ind. 136.

But where the dangerous condition of the bridge or highway is not created by the wrongful act of another, but arises from the act of the corporation itself, or from decay or rottenness of the structure, it is sufficient in the complaint to charge generally the negligence of the defendant in the act or omission complained of, and no averment as to notice is necessary. City of South Bend v. Paxon, 67 Ind. 228; City of Indianapolis v. Scott, 72 Ind. 196; Board, etc., v. Brown, 89 Ind. 48.

The complaint in the case before us avers that the plaintiff was crossing, with a loaded wagon, a wooden bridge of the defendant on a highway, which bridge it was the duty of the defendant to keep in repair and in safe condition for the passage of such wagons, but that defendant, neglecting its duty, permitted the supports of said bridge, and the stringers on which the planks were laid, to become rotten and dangerous, so that when the plaintiff drove thereon, it fell and let the wagon into the stream below, without any fault of the plaintiff, to his damage $ 250, by reason of the said rotten and unsafe condition of said bridge and the neglect of the defendant to repair the same.

Under the authorities above cited, there was no error in overruling the demurrer to the complaint. It is not necessary in such a case to aver that a defendant had notice of its own omissions. The defendant was chargeable with knowledge that timber will rot and decay by lapse of time and exposure to the weather, and it was its duty to use ordinary care to detect and guard against such decay. Board, etc., v. Emmerson, 95 Ind. 579. The complaint charges a want of such ordinary care.

The defendant answered in two paragraphs:

1st. The general denial.

2d. That the bridge mentioned in the complaint was in Madison township, and was a short bridge built by said township, and has always been kept in repair and controlled by the supervisors and superintendents thereof, and that this defendant never had the custody or management thereof, and never had knowledge of any defect therein, and that it was within the means of said township to keep said bridge in repair.

To the second paragraph of said answer a demurrer was sustained, and error is assigned upon this ruling.

The appellant claims that sections 5064 and 5065, R. S. 1881, which require the superintendent of roads in each township to take charge of all bridges in his township, and repair them as far as the prudent use of the means in his hands will permit, relieves the county of some of its obligations, and that the only bridges which the county is bound to repair are those which it would be beyond the means of the township to repair.

But we think the county is bound to keep its bridges in repair although the means of the township may be sufficient, and although the township officer may fail to do his duty.

The office of superintendent of roads was abolished by section 35 of the act March 2d, 1883, Acts 1883, p. 73; but while sections 5064 and 5065, supra, were in force, they did not, and the statutes now in force, which direct in what manner bridges shall be built, and by whom the expense of repairing them shall be borne, do not change the duty of the county board, nor make it any less incumbent on that body to see that the bridges of the county are in good repair.

The act of March 3d, 1855, section 11, which is incorporated in the R. S. of 1881 as section 2892, provides, that "The board of commissioners of such county shall cause all bridges therein to be kept in repair," and this court, in Board, etc., v. Brown, 89 Ind. 48, has said: "If it is the duty of county boards to repair, or cause to be repaired, the bridges of the county, such boards 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 they are kept in repair and reasonably safe and fit for travel." See Yeager v. Tippecanoe Tp., 81 Ind. 46; House v. Board, etc., 60 Ind. 580 (28 Am. R. 657); Pritchett v. Board, etc., 62 Ind. 210; State, ex rel., v. Board, etc., 80 Ind. 478 (41 Am. R. 821); State, ex rel., v. Demaree, 80 Ind. 519; Board, etc., v. Deprez, 87 Ind. 509.

The fact that the bridge was short, and might have been, but was not, repaired by the township, is no excuse for the failure of duty on the part of the county board. There was no error in sustaining the demurrer to the second paragraph of the answer.

The issue was tried by a jury, who returned the following verdict, interrogatories and answers:

"We, the jury, find for the plaintiff, and assess his damages at $ 127."

Interrogatories.

"1. Was the bridge in controversy in Madison township, Allen county, Indiana? Answer. Yes.

"2. Was not the bridge built with materials furnished by the township trustee, and work done by persons under the direction of the supervisor of the road district of said township, in which the same was situate? Ans. Yes.

"3. Were all the repairs on the bridge or its approaches made by the township or one of its officers? Ans. Yes.

"4. Did the county or the board of commissioners ever make any repairs on the bridge, or in any manner take charge of or assume the control or management of the bridge? Answer. No.

"5. How long was the bridge? Ans. Forty feet.

"6. Was it not a cheap bridge, on a road not used very much, and put by the persons in the neighborhood, and used by them also occasionally? Ans. Yes.

"7. Had not the plaintiff examined the bridge the day before, to see whether it was strong enough to bear the engine damaged? Ans. Yes.

"8. Was there any apparent defect in the bridge? Answer. No.

"9. What notice was ever given to the board of commissioners when in session, or to any member of the board when transacting the business of the board, that the bridge was out of repair? Ans. None.

"10. Was there any evidence to show that Madison township did not have funds out of which the same could have been repaired? Ans. No."

The defendant moved the court for judgment in its favor on the answers to the interrogatories. This motion was overruled, and the defendant's motion for a new trial was overruled. Judgment was rendered upon the verdict and the defendant appealed.

The errors assigned, besides those already considered, are:

3. The court erred in overruling the appellant's motion for judgment notwithstanding the verdict.

4. The court erred in overruling the motion for a new trial.

There was no inconsistency between the general verdict and the answers to interrogatories. There was, therefore, no error in overruling the appellant's motion for judgment notwithstanding the verdict.

The reasons for a new trial were:

1. Permitting the witness, Francis Gladio, to testify to a conversation he had with Isaac Marquardt on the railroad, as to the unsafe condition of the bridge.

2. Refusing to strike out the testimony as to said conversation.

3. Refusing to permit the witness, John Weaver, to testify as to the conversation he had with Enoch J. Miller, in which he told Miller that the bridge was unsafe and rotten, the evening before, and the morning of the day when, the bridge broke and injured the engine.

4. The verdict is not sustained by sufficient evidence.

5. The verdict is contrary to law.

6. The damages are excessive.

7. Error in instructions Nos. 1 and 2 given by the court of its own motion.

The fourth, fifth and sixth of the foregoing reasons for a new trial are not discussed by the appellant's counsel in his brief, and are, therefore, regarded as waived.

The bill of exceptions shows that Francis Gladio was one of the county commissioners of Allen county, and had been such for...