Citizens Street Railroad Co. v. Marvil

• Decision Date: 03 June 1903
• Docket Number: 20,044
• Parties: Citizens Street Railroad Company et al. v. Marvil
• Court: Indiana Supreme Court

67 N.E. 921

161 Ind. 506

Citizens Street Railroad Company et al. v. Marvil

No. 20,044

Supreme Court of Indiana

June 3, 1903

Rehearing Denied December 11, 1903.

From Johnson Circuit Court; W. J. Buckingh m, Judge.

Action by John Marvil against the Citizens Street Railroad Company and the city of Indianapolis. From a judgment for plaintiff defendants appeal. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

F Winter, Clarence Winter, W. H. Latta, F. A. Joss, L. D. Hay, R. M. M'ller and H. C. Barnett, for appellants.

A. C. Ayres, A. Q. Jones and J. E. Hollett, for appellee.

OPINION

Monks, C. J.

This action was brought March 1, 1898, by appellee against the Citizens Street Railroad Company and the city of Indianapolis to recover damages alleged to have resulted from appellee's being thrown from his wagon, the wheel of which ran into a depression in a street of said city, negligently created by the street railroad company, and negligently permitted by the city to remain in an unsafe and dangerous condition. A trial of the cause resulted in a verdict and judgment in favor of appellee against appellants.

The errors assigned by the street railroad company are that the court erred (1) in overruling its demurrer for want of facts to the third amended complaint; (2) in overruling its separate motion for a new trial. The only error assigned by the city of Indianapolis is that the court erred in overruling its motion for a new trial.

It is insisted by the street railroad company that said amended complaint is insufficient because it is not alleged that said company "negligently performed any act, or that any act of said company caused the injury." It is alleged in said amended complaint: "That on, to wit, the 19th day of January, 1898, on a certain much-traveled street in said city, known as West Michigan street, at a point about 700 feet east of the east end of the bridge crossing White river, the defendant the Citizens Street Railroad Company, not regarding its said duty, took up an old broken rail in its line of street railway on said West Michigan street at said place, and put in a new rail, and so carelessly and negligently performed its said work as to leave said street in a dangerous and unsafe condition, by putting loose dirt in the excavation so made in changing said old rails for new ones, so as to allow the loose dirt immediately to settle, and leave a dangerous hole or excavation, from fourteen to twenty inches deep, several inches wide, and between fifteen and twenty feet long, so as to permit animals or vehicles to drop down in said dangerous hole or excavation, and thereby frighten animals, break vehicles, and endanger the lives and limbs of travelers along said street; that on the day of plaintiff's accident, hereinafter described, it was raining, and on said day the said hole or excavation was filled with water or mud slush, and about fifteen to twenty feet long, one foot wide, and from fourteen to twenty inches deep; that the said defendant the city of Indianapolis was guilty of negligence in failing to keep the said street at said place in safe repair; that the said street was in said defective condition, and said hole or excavation was open for from fifteen to twenty days or more before plaintiff's accident, and that the city of Indianapolis knew, or by the use of ordinary care could have known, of the defective condition of said street at said place in time to have repaired the same before plaintiff was injured as hereinafter described; that plaintiff, who is a resident of the State of Indiana, in an adjoining county, on said 19th day of January, 1898, in the daytime, about 2 o'clock p. m., while driving west on said West Michigan street in his vehicle, passed over that portion of said street occupied by the defendant citizens railroad lines of said street railway, having no knowledge of said defective street railway, using due care, and, without fault or negligence on his part, the plaintiff's horse stepped into the said hole or excavation left by the defendants as aforesaid, which frightened plaintiff's horse, causing it to jump or lunge forward, pulling the forward wheel of the said vehicle in which plaintiff was riding into the said hole or excavation, breaking said wheel and the tongue of plaintiff's said vehicle, and thereby further frightening plaintiff's team hitched to said vehicle, and throwing plaintiff out, and thereby, without fault or negligence on the plaintiff's part, severely injuring the plaintiff in the back, spine, hip, and arm," etc. It is also alleged "that said accident occurred without any fault or negligence on the part of appellee, and wholly by reason of the negligence of said defendants." Said objections to the complaint are not tenable. Pittsburgh, etc., R. Co. v. Wilson, post, 701, and cases cited.

It is also urged that said amended complaint is insufficient because it does not allege that said street railroad company had any notice of the defective condition alleged. It was not necessary to allege notice to it of the depression caused by its negligent failure properly to fill an excavation made by it in repairing its track. It was the duty of said company to anticipate and provide for the natural effect of rains upon earth placed in said excavation, and it is liable for any injury resulting from its negligent failure to do so. Worster v. Forty-Second St., etc., R. Co., 50 N.Y. 203, 204; Southern Ex. Co. v. Texarkana Water Co., 54 Ark. 131, 133, 15 S.W. 361; Nellis, Street Surface Railroads, 259; Booth, Street Railway Law, § 290. Clearly, it is the law in this State that where the defect in the highway results from the acts of the railway company, as in negligently making the original construction or negligently repairing the same, no averment of notice is necessary. § 5454 Burns 1894, Acts 1891, p. 109; 23 Am. & Eng. Ency. Law, 978, 979, and cases cited; Booth, Street Railway Law, § 290; Evansville, etc., R. Co. v. Carvener, ...