Board of Commissioners of Huntington County v. Huffman, Administrator

• Decision Date: 17 June 1892
• Docket Number: 15,826
• Parties: The Board of Commissioners of Huntington County v. Huffman, Administrator
• Court: Indiana Supreme Court

31 N.E. 570

134 Ind. 1

The Board of Commissioners of Huntington County v. Huffman, Administrator

No. 15,826

Supreme Court of Indiana

June 17, 1892

Petition for a Rehearing Overruled Dec. 15, 1892.

From the Wells Circuit Court.

Judgment affirmed.

J. B Kenner and J. J. Dille, for appellant.

B. F Ibach, A. N. Martin and E. C. Vaughn, for appellee.

OPINION

Miller, J.

The appellee brought this action against the appellant to recover damages on account of the death of one John Sharp, who, it was alleged, lost his life by reason of the negligence of the county in not placing barriers along the approach to a county bridge.

The complaint was in two paragraphs, to each of which demurrers were overruled.

So much of the first paragraph as states the cause of the injury is as follows:

"That the death of John Sharp was caused by the carelessness and negligence of the defendant in not keeping in proper repair, and not putting up proper barricades at the approach or embankment at the south end of the bridge across the Salamonie river, at a point where it was the duty of the defendant to maintain, and keep in repair, a bridge at the town of Warren, Huntington county, and State of Indiana, aforesaid, owing to said want of barricades, the said John Sharp, without any fault or negligence on his part, in attempting to drive upon said embankment and across said bridge, and without any carelessness, negligence, or fault on his part, one of the horses fell, owing to the carelessness of the defendant in allowing a steep and abrupt ascent from the embankment to the bridge, causing a sudden jolt when the wheels struck the bridge, and the wagon, being heavily laden, ran backwards and down the embankment, thereby mangling and crushing said John Sharp, and thereby causing his death."

The second paragraph of complaint states that the injury was caused under the following circumstances:

"That at the south end of said bridge defendant filled in and threw up a large embankment as a part of said bridge as an approach thereto, about eighteen feet wide, and on each side of which there is a steep descent averaging a depth of about twenty feet. That said embankment was not properly guarded by any barricade whatever, and that upon said day the deceased, for the purpose of conveying a load of logs across said bridge, carefully and without any negligence, carelessness or fault on his part, did drive upon said embankment, when, accidentally, and without any fault, carelessness, or negligence on his part, one of the horses attached to said wagon fell, and owing to the steep grade, said wagon ran backwards, he, the said Sharp, sitting upon the load and striving to save his wagon from running over the embankment, but being unable to do so on account of the embankment not having any barricades whatever. That owing to the carelessness and negligence of the defendant in not properly barricading and protecting said approaches, and without any fault or negligence on his part, said horses, wagon, and load ran down and over the embankment, and fell upon said Sharp, and caused his death, all owing to the carelessness and negligence of the defendant, and without fault, carelessness, or negligence on the part of the deceased."

The action was brought by filing a claim in the auditor's office against "The County of Huntington," and not as it should have been, against "The Board of Commissioners of Huntington County." Counsel for the appellant insist that there being no such corporation as the County of Huntington, the demurrer to the complaint should have been sustained.

The defendant, having been sued by a wrong name, plead to the action by its true name, without pleading the misnomer in abatement, and thereby waived the defect. Gilbert v. Nantucket Bank, 5 Mass. 97

The difference between the true name of the defendant and that by which it was sued, was not such as to raise any doubt of the identity of the corporation against which a cause of action was stated; nor was the defendant prevented from making a defense to the action. The case of Jackson Tp. v. Barnes, 55 Ind. 136, is not in conflict with this position, for there the suit was brought against another and different corporation for a debt for which it was not liable.

It is well settled that a complaint charging negligence will be sufficient to withstand a demurrer if the acts which caused the injury are alleged to have been negligently or carelessly done, without stating the specific facts constituting the negligence. Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, 9 N.E. 476; Deller v. Hofferberth, 127 Ind. 414, 26 N.E. 889.

The charges of negligence contained in the first paragraph of complaint are two-fold; one in allowing a steep and abrupt ascent from the embankment to the bridge; the other in not putting up proper barricades at the approach or embankment at the south end of the bridge.

We can not determine from the statements contained in the pleading that the ascent from the embankment to the bridge may not have been so abrupt and of such a height as to be, when situate upon the top of an embankment, dangerous to travelers, the maintenance of which was of itself actionable negligence.

The pleading charges that it was negligently maintained, and we find nothing in the context to counteract the force of that averment.

If such was the nature of the structure, the injury to the deceased seems to have been the natural and proximate consequence of the defect, such as a person of ordinary care and prudence might have foreseen as likely to happen. The absence of barriers along the embankment or approach to the bridge, even if the defendant was under no obligation to maintain them, can not be treated as an intervening, independent agency, operating between the wrong and the injury. 16 Am. and Eng. Encyc. of Law, 440, 444.

We are also of the opinion that the pleading sufficiently charges the defendant with negligence in failing to put up and keep in repair barricades at that portion of the approach of the bridge where the injury occurred.

The approaches to a bridge are a part of the bridge, which it is the duty of a county to keep in repair as a part of the structure itself. Driftwood, etc., Turnpike Co. v. Board, etc., 72 Ind. 226; State, ex rel., v. Demaree, 80 Ind. 519; Board, etc., v. Deprez, 87 Ind. 509; Elliott Roads and Streets, 24.

The determination of the question of how much of an embankment constitutes an approach so as to be a part of a bridge is for the jury. Moreland v. Mitchell County, 40 Iowa 394; Nims v. Boone County, 66 Iowa 272, 23 N.W. 663; Tolland v. Town of Willington, 26 Conn. 578.

In Board, etc., v. Deprez, supra, it was held that "Where railings are needed to make a bridge reasonably safe for travel by those who exercise ordinary care, the corporation in charge of the bridge is guilty...