City of Bloomington v. Chicago, I.&L.R. Co.

• Decision Date: 19 April 1912
• Docket Number: No. 7,580.,7,580.
• Citation: 98 N.E. 188,52 Ind.App. 510
• Parties: CITY OF BLOOMINGTON v. CHICAGO, I. & L. R. CO.
• Court: Indiana Appellate Court

52 Ind.App. 510

98 N.E. 188

CITY OF BLOOMINGTON

v.CHICAGO, I. & L. R. CO.

No. 7,580.¹

Appellate Court of Indiana, Division No. 2.

April 19, 1912.

Appeal from Circuit Court, Lawrence County; J. B. Wilson, Judge.

Action by the City of Bloomington against the Chicago, Indianapolis & Louisville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, with directions to render judgment as stated.Duncan & Batman, Michael T. Poling, and Miers & Corr, for appellant. E. C. Field, Brooks & Brooks, and H. R. Kurrie, for appellee.

IBACH, P. J.

Appellant brought this action to recover over from appellee the amount of a judgment which it had been required to pay to one Minnie Woodworth, a pedestrian, who had been injured by falling through a defective sidewalk, which appellant, with knowledge, had allowed to remain in one of its streets, and in whose case appellee had been notified to appear and assume the defense. The complaint consists of one paragraph, and avers substantially the same facts as are contained in the special finding made by the trial court. It was answered by a general denial. The cause was submitted to the court, who at the request of both parties made a special finding of facts, and stated his conclusion of law thereupon against appellant. The only error assigned is in the court's conclusion of law.

The special finding of facts, so far as essential to the determination of the question before us, is as follows: That appellant was a city duly organized under the laws of Indiana. That appellee was a railroad corporation also duly organized under the laws of Indiana, and for a number of years operated a line of railroad which passed through Monroe county and the city of Bloomington, and transported passengers and freight over its line of road for hire. That said road in passing through the city of Bloomington runs practically north and south, crossing certain streets of said city at right angles until going north it arrives at Sixth street, a street running east and west, where it turns toward the northwest, crossing Seventh street, which runs parallel with and lies immediately north of Sixth street. Said streets are crossed at grade. That, before the construction of the grade of the railroad in 1853, there was a stream of water running practically south across Seventh street, and which said Seventh street crossed through the bed of the stream without any superstructure. That in constructing the grade for said railroad the course of said stream was deflected from the west side of the said grade beginning at the outer edge of the walk in the north line, and a culvert constructed in a southeasterly direction to the south line of said Seventh street; the said culvert being about six feet deep. That in making the grade the railroad company graded the whole width of the street on both the east and west sides thereof back 150 to 250 feet over said culvert and to the depth of 1 or 2 feet, over which and by means of said grade the public passed over said stream, railroad track, and culvert in using the street. That the south end of said culvert was flush with the south line of the pavement at the south side of Seventh street, and was 20 feet east of the east rail of the track. The said culvert entered into an open drain walled on the west side by a stone wall built by appellee and extended south and 10 or 15 feet east of said east rail of said railroad about 132 feet. That prior to February 9, 1905, appellant had built a brick sidewalk on the east side of Seventh street and adjacent to the south line thereof to within about 50 feet of the east side of the railroad track, and appellee had built a board walk from the end of said brick wall over and across said culvert and grade to the east rail of the track. That it put a wooden banister on the south side of such walk about 35 feet long, and which banister extended to within 10 feet of said east rail. This walk so constructed had been used for a number of years by the traveling public. That on the evening of February 9, 1905, Minnie Woodworth, while passing over such wooden portion of the walk, and between appellee's east rail and the culvert, got her foot in a hole in such board sidewalk, was thrown, and permanently injured. On March 23, 1905, she brought suit against appellant. Then follows a copy of her said complaint, as well as copies of the other pleadings filed in such court. The result of the trial was the awarding to said plaintiff of damages in the sum of $5,000. Appellee failed to appear, and appellant was required to pay and did pay on account of such judgment, interest, and expense of court the sum of $5,966.70. The conclusion of law is “the law is with the defendant, and the plaintiff is not entitled to recover in any sum.”

It is contended by appellant that both by the principles of the common law and by statute a duty is imposed upon appellee, both to construct and to maintain all highway crossings and the approaches thereto in a reasonably safe condition for the traveling public, and that it is liable to respond in damages to one who has sustained injuries on account of neglect to perform any of such duties, and, since the railroad company is primarily liable for such damages, any judgment which the city has been required to pay an account of the same injury, together with costs, and all reasonable expense of making the defense, can be recovered back from such railroad company, and, since notice was served upon it to appear and defend the original action, it is bound by the matters litigated in that cause. In the original complaint the defendant city was charged with negligence in failing to sufficiently light the defective portion of the walk in suit. As to this charge appellant contends that lighting a street of a city is a governmental function, and that, since a city cannot be held liable for a failure to perform a governmental function, the conclusion announced by the court could not have been based on that fact as constituting an act of negligence. In answer to those contentions, appellee says that a property owner is not liable to return to the city the amount of the judgment which it was required to pay out on account of the defective walk where it appears that the property owner has done nothing more than fail to make improvements or repairs; also, that it was not the effect of legislative enactment on this subject to place upon railroad companies the primary duty of maintaining the streets and alleys over which it crosses. Furthermore, because in the original suit brought by Minnie Woodworth the city was charged with an independent act of negligence in failing to maintain a sufficient light near the dangerous walk so that its dangerout condition might be discovered, and as it was no part of the duty of the railroad company to maintain lights, it must be concluded that the judgment of the court was based upon the whole complaint which included the absence of the light.

[1] Cities of this state under existing statutes have complete jurisdiction over all streets and public ways within their respective limits. Burns' Statutes 1908, §§ 8655, 8960-8966. Consequently they are held liable upon the failure of their officers to perform the duty of keeping such public highway in a reasonably safe condition for travel. Wickwire v. Town of Angola, 4 Ind. App. 253-256, 30 N. E. 917;McNaughton v. City, 85 Ind. 384, 388.

[2] The property owner, however, who is guilty of some affirmative wrongful act in causing the defective condition of the street, is liable to the city or town for any amount which it may have been required to pay to any one as damages on account of the defective...