Board of Commissioners of Vermillion County v. Chipps

• Decision Date: 15 January 1892
• Docket Number: 14,722
• Citation: 29 N.E. 1066,131 Ind. 56
• Parties: The Board of Commissioners of Vermillion County v. Chipps, Administrator
• Court: Indiana Supreme Court

29 N.E. 1066

131 Ind. 56

The Board of Commissioners of Vermillion County v. Chipps, Administrator

No. 14,722

Supreme Court of Indiana

January 15, 1892

Petition for a Rehearing Overruled April 1, 1892.

From the Fountain Circuit Court.

Judgment reversed, with directions to sustain the appellant's motion for a new trial in this cause.

M. G Rhoads and I. F. Davidson, for appellant.

H. H Conley, J. C. Sawyer and H. H. Dochterman, for appellee.

Coffey J. Mcbride, J., dissents.

OPINION

Coffey, J.

The complaint in this case alleges that the appellee is the duly appointed and qualified administrator of the estate of Robert Baker, deceased; that, on the 20th day of July, 1887, there was a bridge in Vermillion county which had prior thereto been constructed by said county, and which it was bound to maintain; that it had negligently constructed said bridge by placing therein weak, knotty and defective timbers, leaving it in an unsafe condition, and that it had negligently accepted said bridge, from the contractor who built the same, in an unsafe condition for passengers, by reason of the weak, knotty and defective pine timbers placed therein, while the contract and specifications for said bridge provided that the same should be constructed in a good, substantial, workmanlike manner, of poplar timber; that it had negligently suffered said bridge to remain in such unsafe condition, and to become out of repair, so that on the 20th day of July, 1887, the joists and other timbers upon which the floor of said bridge was laid were defective, weak, brittle, knotty, old, decayed and rotten, so that it was dangerous for persons to pass over the same in the ordinary use of said highway, of which the county had notice; that on that day the deceased, Robert Baker, not knowing the defective, decayed and dangerous condition of the bridge, but having reason to believe it was in good repair and in safe condition, attempted to pass over the same with a portable traction engine used for threshing grain, and by reason of the defective, decayed and dangerous condition of the bridge, caused by the failure and neglect of the board of commissioners of the county to properly construct and keep the same in repair, and without any fault on the part of the deceased, the bridge gave way and precipitated the deceased and said engine into the stream below, a distance of sixteen feet, whereby he was, without any fault on his part, stunned, bruised and scalded, from the effects of which he died; that he left a widow and two children, who were dependent upon him for support.

To this complaint the appellant filed an answer in two paragraphs:

First. The general denial.

Second. Alleging contributory negligence.

The court sustained a demurrer to the second paragraph of the answer, to which appellant excepted.

A trial by jury resulted in a general verdict for the appellee. The jury also returned answers to interrogatories with their general verdict.

Over a motion for new trial the court rendered judgment on the general verdict for the appellee.

Several reasons for a reversal of the judgment of the circuit court are urged here, which will be considered in the order in which they are presented by counsel for appellant.

First. It is contended that the complaint above referred to does not state facts sufficient to constitute a cause of action.

The sufficiency of the complaint is questioned for the first time in this court by an assignment of error.

It is settled that where the sufficiency of a complaint is questioned for the first time in this court by assignment of error, it will withstand such attack if it be sufficient to bar another action for the same cause, and would be good after verdict. Du Souchet v. Dutcher, 113 Ind. 249, 15 N.E. 459; Orton v. Tilden, 110 Ind. 131, 10 N.E. 936; Hornady v. Shields, 119 Ind. 201, 21 N.E. 554.

In the case of Board, etc., v. Montgomery, 109 Ind. 69, 9 N.E. 590, it was said by this court: "The liability of counties for negligence in constructing or maintaining bridges is no longer an open question in this State, for there are many cases declaring that they are liable."

The complaint before us sufficiently alleges the negligence of the county, both in constructing and maintaining the bridge therein described, and contains the necessary allegation that the deceased was without fault.

It is conceded by the appellant's counsel that ordinarily this would be sufficient, but it is insisted that it is not sufficient under the rule announced in the case of City of Wabash v. Carver, 129 Ind. 552, 29 N.E. 25.

In that case a rehearing was granted, and upon a reconsideration of the question it was held that the complaint in that case stated a cause of action. We think the complaint in this case is also sufficient.

The court committed no available error in sustaining a demurrer to the second paragraph of the appellant's answer, as all the matters therein averred were admissible in evidence under the general denial, which was pleaded. Board, etc., v. Legg, 110 Ind. 479, 11 N.E. 612; Haywood v. Hedrick, 94 Ind. 340; Becknell v. Becknell, 110 Ind. 42, 10 N.E. 414.

The facts in the case, as they are disclosed by the evidence, are that the bridge mentioned in the complaint is a covered bridge, about thirty feet in length, and was constructed in the year 1869. For at least ten years after its construction traction engines were not used in Vermillion county, where the bridge is situated, but for the period of four or five years prior to July, 1887, they had been in general use. On the 20th day of July, 1887, the appellee's intestate attempted to cross the bridge with a traction engine weighing eight thousand six hundred pounds, when the bridge gave way, and he was thereby killed.

The evidence tends to show that six thousand pounds was the heaviest loads to which bridges in that neighborhood were subject at the time this one was constructed.

The bridge in question was constructed by one Daniels, an expert bridge builder, under plans and specifications furnished by the county.

The evidence tended to prove that some of the timbers which gave way were knotty and brittle, and had begun to decay.

One Britton, an expert, called as a witness by the appellee, testified that the defects in these timbers were original defects, the timber being unfit for use as bridge timber by reason of its knotty and brash condition, while Daniels, an expert, called by the appellant, and the person who constructed the bridge, testified that the timber was good and was suitable for the construction of a good and safe bridge, and was such as was put in all bridges at the time this was constructed, and that he inspected and accepted the timber, believing it to be suitable for the purpose intended.

Two or three weeks prior to the accident above mentioned the trustee of the township in which the bridge is situated employed a carpenter, of twenty four years' experience, to examine the bridge, and make a careful inspection of its timbers, and put the same in good repair, which he, in connection with the supervisor, proceeded to do. He put in some new timbers, and, after inspection, pronounced the other sound and safe, and supplied the bridge with a new floor.

On the trial of the cause the court, over the objection and exception of the appellant, permitted the appellee to prove that in other parts of the county, and on other highways than the one in controversy, traction engines were common, and that it was customary for them to cross the bridges on such highways.

The decided weight of authority is that, in the absence of a statute upon the subject, a county is not liable for a failure to keep its bridges in repair. Elliott Roads and Streets, p. 42.

The reason given, in most of the adjudicated cases, for holding that counties are not liable in such cases is that, as the State would not be liable, it is unreasonable to hold that a public corporation, such as a county, which is a mere governmental instrumentality, should be held liable. But whether this reason is valid or otherwise, we need not stop to inquire, for it is now firmly settled in this State that a county is liable for a failure to exercise reasonable care in the construction of its bridges, or to exercise reasonable care in keeping such bridges in repair.

Counties are not insurers, however, of the safety of...