City of Elwood v. Laughlin

• Decision Date: 28 October 1902
• Citation: 65 N.E. 18,29 Ind.App. 667
• Parties: CITY OF ELWOOD v. LAUGHLIN.
• Court: Indiana Appellate Court

29 Ind.App. 667

65 N.E. 18

CITY OF ELWOOD

v.LAUGHLIN.

Appellate Court of Indiana, Division No. 1.

Oct. 28, 1902.

Appeal from circuit court, Madison county; John F. McClure, Judge.

Action by Martha J. Laughlin against the city of Elwood. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wilkie & Wilkie, for appellant. Greenlee & Call, for appellee.

BLACK, J.

A demurrer to the complaint of the appellee, Martha J. Laughlin, against the appellant, for want of sufficient facts, was overruled. After introductory matter, it was alleged in the complaint that, long before the date of the injury complained of, the city, by due process of law, improved a portion of Sixteenth street, extending north and south in the city, by macadamizing and graveling, and by constructing on either side brick sidewalks; that North C street, extending east and west, intersects the portion of Sixteenth street so improved; that at the intersection, on the south side of North C street, where it crosses Sixteenth street, on the sidewalk on the east side thereof, was constructed a small culvert by the city at the time of the improvement; that the plan of constructing the culvert was the setting of curbstones, about 3 inches in thickness, in an upright position, about 15 inches apart, the depth of the space or drain over which the culvert, was made being about 15 inches below the surface level of the sidewalk so constructed by the city, and placed upon said stone curbings were iron stringers, of length equal to the space between said curbings, and extending over the tops of the curbings, and being so crooked and curved as to leave space for a 2-inch board to be hung therein, the top surface of which was to be level with the surface of the sidewalk,-the board to be sawed out and grooved in such manner at either side that the iron stringers would be buried in the wood thereof, and would hold the board in its proper position. It was further alleged that the city carelessly, negligently, and knowingly placed upon these stringers a thin board, about five-eighths of an inch in thickness, and of less width than the space between the curbings, and negligently, carelessly, and knowingly failed to saw out or groove the board on either side so that it would be properly held in its place, but carelessly, negligently, and knowingly placed the board therein in a loose condition, without any means of its being held and retained in its proper position and place, and negligently, carelessly, and knowingly failed to place therein any timber or board of sufficient thickness or width to fit the space as so designated, and to be of such width and so attached and hung therein as to be safe for ordinary travel, and to be retained in its proper position. It was alleged that the culvert was constructed upon a sidewalk over which there was great travel; that the appellee at all times mentioned in the complaint was a resident of the city; that on the 7th of September, 1898, she was walking along Sixteenth street in a careful and prudent manner; that, as she approached and entered upon and was about to cross the culvert, one Annie Churchill, a resident of the city, was walking upon the street and sidewalk, and stepped upon said board; that the board was displaced by Annie Churchill's stepping upon it at the instant at which appellee was about to cross the culvert, and thereby tripped and threw the appellee violently to the ground without her fault or negligence, and she was then and thereby seriously and permanently injured, the character of her injuries and consequent disability being stated at length, all of which, it was alleged, was without fault or negligence on the part of the appellee, and solely through the carelessness and negligence of the appellant. There were further allegations relating to her sufferings and disability and expenses, all of which, it was alleged, “was caused by the careless and negligent acts of the defendant as aforesaid, and without fault or negligence on her part, and by reason of which she was damaged in the sum of,” etc., “wherefore,” etc.

It is contended on behalf of the appellant that the complaint is defective because (1) it does not contain an allegation that Annie Churchill was without fault; also (2) because it is not alleged that the appellee had no notice of the defect in the street; and (3) for the reason that it is not alleged that the city knew of the defect in the street.

The allegation that the appellee's injury was without any fault or negligence on her part, and solely through the negligence and carelessness of the appellant, in the absence of any statement directly or indirectly imputing any fault or negligence to Annie Churchill, seems to import, by inference, that there was no culpability and no negligence on the part of Annie Churchill contributing to the injury. If we assume, however, that such language is not equivalent to a direct averment that she did not by her fault or negligence contribute to the injury, we could not for such reason condemn the pleading. It appears from the complaint that the board was displaced by Annie Churchill's stepping upon it, and thereby the appellee was tripped and thrown down. Therefore the act of Annie Churchill in stepping upon the board was a cause which, with the negligence attributed by the pleading to the appellant, brought about the injury which is alleged to have been caused by the specified negligence of the appellant; the act of Annie Churchill being an incident without which the appellant's negligence would not have occasioned the particular injury. The municipal corporation should have foreseen that persons walking on the sidewalk at the much-frequented place where the culvert was constructed probably would displace the insecured board by stepping on the culvert, either with ordinary care or negligently, at a time when another person lawfully using the public way and walking with ordinary carefulness would be tripped by the suddenly displaced board. If the person who stepped on the board, and thereby displaced it, did so negligently, the displacement of the board thereby was such a consequence of the negligent construction as ought to have been anticipated, because it might reasonably have been foreseen or expected under all the circumstances stated. If there was negligence on the part of Annie Churchill, it was not only not sufficient of itself, without appellant's alleged negligence, to produce the injurious result, but it was such negligence as might reasonably have been anticipated, and was a probable occurrence, against which it was the duty of the city to guard in constructing the culvert. The displacement of the board by Annie Churchill's stepping upon it was itself caused by the negligent construction of the culvert. It was a consequence of the original negligence charged, such as might, with reasonable care and diligence in the construction of the culvert, have been anticipated as a result of the alleged negligence therein. Wright v. Railway Co., 27 Ill. App. 200. It might with reasonable prudence have been expected that, as a result of such negligence, an injury would probably occur in the very manner in which the particular injury complained of did occur. The original negligence of the appellant was the proximate cause of the intervening occurrence-the displacement of the board-which resulted in the injury, and therefore was the cause of the injury. The intervening occurrence was, indeed, merely one mode through which it might reasonably have been expected that the original negligence would probably operate injuriously as it did operate. The defective condition of the culvert resulting from the alleged negligence of the appellant was the efficient and adequate cause for the appellee's injury alleged to have been thereby caused. This should be treated as the true and proximate cause, within the meaning of the rule, unless another self-operating cause, not incident to the cause produced by or resulting from the appellant's negligence, but independent thereof and disconnected therewith, appears to have intervened between the appellant's negligence and the injury. In Lane v. Atlantic Works, 111 Mass. 136, 139, is the following language, commended in Thomp. Neg. (2d Ed.) § 49: “The act of a third person intervening, and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.” In that case it was held to be immaterial whether the act of the intervening third person was mere negligence or a voluntary intermeddling, if it was an act which the defendant ought to have apprehended and provided against. In Shear. & R. Neg. § 29, is the following statement: ...