Board of Commissioners of Howard County v. Legg

• Citation: 93 Ind. 523
• Decision Date: 23 February 1884
• Docket Number: 10,902
• Parties: Board of Commissioners of Howard County v. Legg, Administrator
• Court: Supreme Court of Indiana

93 Ind. 523

Board of Commissioners of Howard County v. Legg, Administrator

No. 10,902

Supreme Court of Indiana

February 23, 1884

From the Hamilton Circuit Court.

Judgment reversed.

J O'Brien and C. C. Shirley, for appellant.

D Waugh, D. Moss, R. R. Stephenson and W. S. Christian, for appellee.

OPINION

Elliott, J.

It is the law of this State that counties are charged with the duty of keeping in reasonably safe condition for ordinary use all bridges owned by them, and that they are liable to one, who is himself free from negligence, for injuries proximately resulting from a neglect to perform this duty. Board, etc., v. Brown, 89 Ind. 48; Board, etc., v. Deprez, 87 Ind. 509; State, ex rel., v. Board, etc., 80 Ind. 478; S. C., 41 Am. Rep. 821; State, ex rel., v. Demaree, 80 Ind. 519; Board, etc., v. Pritchett, 85 Ind. 68; House v. Board, etc., 60 Ind. 580; S. C., 28 Am. Rep. 657; Pritchett v. Board, etc., 62 Ind. 210; 1 Thomp. Neg. 618; 2 Dillon Munic. Corp. (3d ed.), sec. 998.

We see no reason to doubt the soundness of the cases declaring this doctrine. They rest upon the principle that where organized public bodies are provided with means for erecting and maintaining bridges, and are charged with the duty of maintaining them, they must discharge this duty with reasonable care and diligence. It is upon this principle that all the cases rest, and many of them there are, which hold municipal corporations liable for negligence in failing to maintain streets and alleys in repair. It is true that many American cases, losing sight of the fact that in this country counties are regularly organized and invested with power and means to maintain bridges, while in England it is otherwise, have followed the holding in the old case of Russell v. Men of Devon, 2 T. R. 667, and declared that there is no liability on the part of counties for a failure to keep bridges in a safe condition. The later cases recognize the fact that in principle the American cases holding this doctrine are not sound. Thus, in Altnow v. Town of Sibley, 30 Minn. 186, 14 N.W. 877, S. C., 44 Am. Rep. 191, we find a learned judge yielding to precedent, but saying: "I find it hard to distinguish in principle between cities and towns in respect to their liability for neglect of the duty imposed upon them to repair street and highways."

The complaint must show that the bridge was one over which the county authorities had control, for, unless this appears, there is no liability. Board, etc., v. Deprez, supra, vide authorities cited, p. 512.

It is charged in the third paragraph of the complaint before us, that the appellant had for more than ten years prior to the time appellee's intestate was injured, maintained the bridge; that the bridge formed a part of a public highway in the county of Howard; and that it was the duty of the defendants to keep the bridges on the public highway in the county of Howard in repair. We think that these allegations show that the bridge was one over which the county had control and which it was bound to maintain. The complaint is essentially different from that in the case of Board, etc., v. Deprez, supra, for it is here averred that it was part of a public highway in the county, and had been maintained by the county for more than ten years; while in the case cited the bridge was shown to be within an incorporated city.

Where the complaint avers that the plaintiff was without fault, it sufficiently negatives contributory negligence. Where this allegation is made the complaint will stand, unless it clearly appears from the facts stated that the plaintiff was guilty of negligence proximately contributing to the injury. Rogers v. Overton, 87 Ind. 410; City of Washington v. Small, 86 Ind. 462; Town of Rushville v. Poe, 85 Ind. 83; Murphy v. City of Indianapolis, 83 Ind. 76; Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182; Town of Salem v. Goller, 76 Ind. 291. In the present case, the facts, instead of showing contributory negligence, go far to show that there was none.

Knowledge that a bridge or highway is unsafe or defective is always an important consideration on the question of contributory negligence, but it does not follow that wherever there is knowledge there is negligence. Toledo, etc., R. W. Co. v. Brannagan, 75 Ind. 490; City of Huntington v. Breen, 77 Ind. 29; Murphy v. City of Indianapolis, 83 Ind. 76; Henry Co. Turnpike Co. v. Jackson, 86 Ind. 111 (44 Am. R. 274); Board, etc., v. Brown, 89 Ind. 48. If the complaint in this case had failed to aver that the intestate was ignorant of the unsafe condition of the bridge, it would, nevertheless, have been good, because it contains the general allegation that he was free from fault.

Under the general denial it was competent for the appellant to prove that the bridge was not one over which the county authorities had control and for which the county was liable to be called to account for a failure to repair, and, also, to prove that the appellee's intestate was guilty of contributory negligence. The affirmative matter pleaded in the paragraphs to which demurrers were sustained was admissible under the general denial, for it went only to questions of the ownership of the bridge, and of contributory negligence on the part of the intestate, and there was, therefore, no error in sustaining demurrers to these paragraphs.

The question of negligence is seldom one of law for the court. It is generally a question for the jury, to be submitted under proper directions of the court. In this case, the question as to whether the intestate was or was not negligent in driving on the bridge in a particular manner was one of fact for the jury and not of law for the court. It would, therefore, have been error to have instructed the jury that the intestate was guilty of negligence in driving on the bridge in the manner specified in the seventh instruction asked by the appellant.

It is true that a county is liable only on the ground of negligence, and it is not enough, in any case, for the plaintiff to show that there was a defect in the bridge, and that this defect was the cause of injury. He must show that the defect was caused by the negligence of the county in constructing the bridge, or that after notice of the existence of the defect the county negligently omitted to remedy it. Notice is imperatively required, but it is not essential that it should be express. Where the circumstances are such as imply notice, then notice is considered to be sufficiently established. If the defect has existed for such a length of time as that the county ought to have had knowledge, then it will be charged with notice. We regard the instructions upon this point as substantially correct.

In assuming, as some of the instructions asked by the appellant did, that the appellee was bound to show that the bridge was built by the county, an error was incorporated which justified their rejection. A county, which adopts a bridge erected by others, is bound to the same extent as if it had originally constructed it. State, ex rel., v. Demaree, 80 Ind. 519.

Unless the instructions are correct in terms the court is not bound to give them. A party must show that the instructions refused were in such terms as made them express the law correctly, or there is no error in refusing them. It is not the duty of the court to amend, correct, or modify instructions, although it may, if it chooses, make amendments or corrections. Lawrenceburgh, etc., R. R. Co. v. Montgomery, 7 Ind. 474; Roots v. Tyner, 10 Ind. 87; Charging Jury, section 86; Prof. Jur. 440.

If the bridge described in the complaint and evidence was a county bridge, and formed a part of a county highway, then the size of the bridge would not be material, for whatever its size, large or small, the county would be bound to use ordinary care and diligence to keep it in safe condition for travel. Board, etc., v. Brown, 89 Ind. 48. If the bridge is part of a township road and is under the control of the township authorities, and not of the county officers, then there is no liability on the part of either the county or township. This is so, for the reason that counties are responsible only for county bridges; while townships, not being provided with means for repairing bridges, are not liable in any case for failure to repair. Yeager v. Tippecanoe Township, 81 Ind. 46. It is, however, to be observed that the structure must be a bridge within the meaning of the law, for it is only to bridges that our former decisions apply. Whether the same duty rests upon counties with respect to highways as is cast upon them respecting bridges, is a question yet to be determined. Whether a structure is or is not a bridge is an issue made by the general denial, and the onus is always upon the plaintiff.

County officers are chargeable with knowledge of the tendency of timber to decay, and it is incumbent upon them to use reasonable care in providing against the timbers of a bridge becoming unsafe because of the decay incident to age and long use. They are not bound, however, to do more than use ordinary care, and if they act with reasonable care and diligence there is no liability. City of Indianapolis v. Scott, 72 Ind. 196; Rapho v. Moore, 68 Pa. 404 (8 Am. R. 202).

The duty of a county respecting the maintenance of bridges is to be determined by the law in force at the time the accident occurred, and not by laws subsequently enacted. As the plaintiff's intestate received the injuries which caused his death in September, 1880, we are to look to the statutes then in force, and not to those subsequently adopted.

It may be in the discretion of the county commissioners to discontinue bridges in some instances; but whenever they choose to exercise this discretion,...