Bonebrake v. Board of Commissioners of Huntington County

• Decision Date: 09 April 1895
• Docket Number: 17,057
• Citation: 40 N.E. 141,141 Ind. 62
• Parties: Bonebrake v. The Board of Commissioners of Huntington County
• Court: Indiana Supreme Court

40 N.E. 141

141 Ind. 62

Bonebrake v. The Board of Commissioners of Huntington County

No. 17,057

Supreme Court of Indiana

April 9, 1895

From the Whitley Circuit Court.

Judgment reversed, with instructions to grant a new trial.

R. A Kaufman, T. R. Marshall and C. W. Watkins, for appellant.

L. P Milligan and S. E. Cook, for appellee.

OPINION

Howard, J.

This was an action for damages, brought by the appellant against the appellee for injuries alleged to have been caused by the breaking down of a bridge in Huntington county.

On change of venue to the court below, there was a trial resulting in a verdict for $ 7,000, in favor of the appellant.

A new trial being awarded, the honorable judge below was called to try the cause, which was again submitted to a jury. After the appellant, plaintiff on the trial, had submitted his evidence, the appellee, defendant below, demurred thereto, which demurrer was sustained by the court, and judgment for costs was entered against the appellant.

The errors alleged and discussed on this appeal, are:

1. The overruling of appellant's demurrer to the second paragraph of the answer.

2. The exclusion of certain testimony offered by the appellant.

3. The sustaining of appellee's demurrer to appellant's evidence.

It was alleged in the complaint that the bridge which had broken down and thus caused appellant's injury, "was a bridge across Clear creek, which it was the duty of said county to maintain and keep in repair."

In the second paragraph of the answer, to which appellant contends a demurrer was improperly overruled, it was averred, "that the bridge or culvert complained of, was not a bridge or structure which spanned a watercourse with defined bed and banks; but was a small bridge or culvert made to carry the surface water from said road away from it after heavy rains."

We do not think that appellant suffered from the ruling complained of. The averment in the paragraph of answer was but a denial of the corresponding allegation of the complaint, and, since the general denial was also pleaded, any fact which might be proved under the special answer might, in case the demurrer were sustained, be proved quite as well under the general denial.

The evidence, as to the exclusion of which complaint is made, consisted of certain expert testimony, the object of which was to show that if the bridge had been kept in good repair, as originally built, it would have safely sustained a much larger load than that under which it broke down. We think this testimony should have been admitted for that purpose. The witnesses were experienced bridge builders and had made examination of the bridge immediately after the accident. First detailing to the jury their observations and describing the kind of bridge they found, and its plan of construction, they might certainly be allowed to state whether, in their opinion, if the bridge so made had been kept in repair, it would have safely borne the load placed upon it. That would have tended to show its condition at the time of the accident.

Witnesses are not allowed to give their opinions in matters of which the jury can judge quite as well as they; but when a witness has been shown to be an expert, and when he states the facts upon which he bases his conclusions, his opinions may certainly be given for the information of the jury. The jury will, of course, judge of the force and weight of such evidence as of any other. Eggers v. Eggers, 57 Ind. 461, 7 Am. & Eng. Encyc. Law, 490-516.

In demurring to appellant's evidence the appellee expressly admitted "all the facts stated by the witnesses, hereinbefore set out, and every inference and conclusion that may rightfully and reasonably be drawn therefrom."

An examination of the evidence adduced by the appellant, taken in connection with the admission thus made, being likewise the admission implied in law in case of demurrer to evidence, leads to the opinion that damage is shown to appellant, without his fault, and by reason of the negligence of appellee.

One McEnderfer, with his engineer and assistant, and accompanied by appellant, who was there by invitation, took his traction engine and tank cart upon the bridge in question--the four men riding--when the bridge gave way and the appellant was caught and injured between the tank and engine as they went down.

The bridge was upon a public highway and had been built by the township trustee about seven years previous to the accident. There had been a former bridge at that...