Board of Comm'rs of Gibson County v. Emmerson

• Decision Date: 27 May 1884
• Docket Number: 11,510
• Citation: 95 Ind. 579
• Parties: The Board of Commissioners of Gibson County v. Emmerson et al
• Court: Indiana Supreme Court

95 Ind. 579

The Board of Commissioners of Gibson County v. Emmerson et al

No. 11,510

Supreme Court of Indiana

May 27, 1884

From the Gibson Circuit Court.

The judgment is a affirmed, with costs.

L. C Embree, for appellant.

T. R Paxton, for appellees.

OPINION

Niblack J.

During the year 1876, the board of commissioners of the county of Gibson caused a wooden bridge to be constructed across Pigeon Creek, at a point where a public highway of that county crossed that stream, and the bridge so constructed was thereafter continuously used in connection with, and as a part of, the highway, until it broke down as hereinafter stated.

Its middle or main span was near forty feet in length, and a similar bridge could not now be constructed for probably less than $ 300.

On the 10th day of July, 1883, Garrett M. Emmerson and Zachary T. Emmerson were the owners of a portable steam engine, used in threshing wheat, and capable of being drawn from place to place like a wagon.

On that day the Emmersons, who are the appellees here, were, with the assistance of two mules and two horses, engaged in transporting their engine along the highway and across the bridge herein above named. When the persons in charge of the engine approached the bridge, they saw nothing unusual in its appearance, and drove upon it for the purpose of passing over it. While upon the middle or main span the bridge gave way and precipitated the engine into the bed of the stream below, carrying the mules with it. The engine was very seriously injured, and the mules were only rescued by cutting their harness to pieces and thus detaching them from the engine.

The Emmersons soon afterwards filed a claim before the board of commissioners of Gibson county for the damages resulting to them from the falling of the bridge, but that tribunal refused to allow the claim, or any part of it. Whereupon they appealed to the circuit court, where they filed an amended and more formal complaint, in two paragraphs, to both of which demurrers were overruled. A trial resulted in a verdict in favor of the Emmersons, assessing their damages at $ 185, and, over a motion for a new trial, they had judgment on the verdict.

The board of commissioners, appealing, first questions the sufficiency of the complaint. But, in proceedings like this, very little formality in pleading is required, and it is but seldom that any material question arises upon the pleadings. Board, etc., v. Adams, 76 Ind. 504; Board, etc., v. Armstrong, 91 Ind. 528.

Both paragraphs of the complaint contained a succinct and detailed statement of an apparently reasonable claim against the county, and that was all that is necessary in any case commenced before a board of county commissioners. Board, etc., v. Loeb, 68 Ind. 29; Board, etc., v. Gillum, 92 Ind. 511.

The circuit court instructed the jury as follows:

"In this case, Gentlemen, if the plaintiffs have proven that the bridge in question was on a public highway of Gibson county Indiana, that it had been built by the defendant, the Board of Commissioners of Gibson county, that the board negligently suffered the bridge to be out of repair, whereby the plaintiffs, in the ordinary use of the bridge, were injured in their property described in the complaint, without any fault on the part of the plaintiffs, in that view of the case the plaintiffs would be entitled to a verdict for whatever sum the evidence shows their property was damaged by reason of such defect. The county is not an insurer of all bridges in the county, but upon the subject of the alleged negligence the material inquiry is whether the bridge in point of fact was, at the time of the alleged injury and immediately before, out of repair, and whether the defendant, the board, under all the circumstances shown, was guilty of negligence in permitting the bridge to become and remain out of repair. If the defendant was not negligent in permitting the bridge to be out of repair, in that view of the case your verdict should be for the defendant. If the proof shows that the bridge was out of repair at and immediately before the alleged injury, and the defendant was negligent in permitting the bridge to be out of repair, and if you should further believe from the evidence that the...