City of Elwood v. Addison

• Decision Date: 02 January 1901
• Docket Number: 3,263
• Parties: CITY OF ELWOOD v. ADDISON
• Court: Indiana Appellate Court

59 N.E. 47

26 Ind.App. 28

CITY OF ELWOOD v. ADDISON

No. 3,263

Court of Appeals of Indiana

January 2, 1901

From the Madison Superior Court.

Affirmed.

B. R Call, L. W. Mellette and J. A. Van Osdol, for appellant.

H. F Wilkie, Henrietta Wilkie, T. Bagot, A. Ellison and C. K Bagot, for appellee.

OPINION

ROBINSON, J.

Suit by appellee for the death of his infant son resulting from appellant's alleged negligence. Demurrer to complaint overruled and answer in denial. Trial by jury and verdict for appellee with answers to interrogatories. Over appellant's motion for a new trial judgment was rendered on the verdict. Appellant questions the sufficiency of the complaint and the denial of the motion for a new trial.

The complaint avers that an ancient natural water course crosses Main street, one of the principal thoroughfares in appellant city; in 1891 a water company laid a fourteen-inch main along Main street and across the water course with the top of the main level with the bed thereof; afterwards appellant improved and regraded the street and at the water course made a fill eight feet in height and through the fill constructed a culvert and negligently lowered the bed of the stream leaving about one-half of the culvert above and the other half below the main; that appellant carelessly and negligently left the main in the above condition so that at every rainfall thereafter the water would carry debris and drift and lodge the same against the water-main and stop the flow of water so that the same accumulated in great volume above the grade and culvert and at the side of the street and sidewalk; that from 1893 to the time of the injury complained of, appellant, with full knowledge of the condition of the culvert and water-main and knowing the same was constantly damming up the water course and that upon every heavy rainfall the same did and would dam up the water course and cause a large and deep pool of water to accumulate and stand along the side of the street and sidewalk and that the same constantly endangered the lives of persons traveling the street, carelessly and negligently maintained the culvert in that condition; that on March 22, 1898, drift lodged against the water-main and obstructed the flow of water through the culvert so that water accumulated to a depth of six feet immediately along and adjacent to the street and sidewalk, and the drift and debris above the culvert formed an eddy or whirlpool such as would attract the attention and curiosity of children lawfully upon the street and sidewalk and cause them to stop and throw sticks into the same, and that this dangerous condition of the edge of the street and sidewalk was brought about by reason of the carelessness and negligence of appellant in maintaining the culvert in such condition; that on the date last mentioned appellee's son, seven years of age, and of ordinary intelligence and experience of a child of that age, on his way to school along Main street, which was his best route, in passing the water accumulated along the side of the street was attracted by the same and was tempted to and did pause at the edge and near the water and throw sticks into the same, and slipped from the edge of the sidewalk into the water and was drowned, all without the fault of appellee or his son.

It is argued at length that the complaint is insufficient. It is not sought to recover for an injury resulting from a defect in the traveled part of the street, nor is it attempted to charge any negligence in the construction or maintenance of the surface of the street. The theory of the pleading, so far as appellant's negligence is concerned, is the maintenance of the culvert in a condition which caused a large and dangerous pool of water to form in close proximity to the street and sidewalk. The immediate cause of the death was the pool of water near the street and sidewalk, but this was necessarily incident to the city's wrongful act in maintaining an insufficient culvert to carry away the water. The result that did happen would not have happened had there been a sufficient culvert. The maintenance of the insufficient culvert was the proximate, although not the immediate, cause of the death. We fail to see upon what principle a wrongdoer may be permitted to take advantage of his own wrong by saying that the injury resulted from a more immediate cause when this immediate cause was put into operation by his own wrongful act. Louisville, etc., Co. v. Nolan, 135 Ind. 60, 34 N.E. 710; Cole v. Wood, 11 Ind.App. 37, 36 N.E. 1074.

It is the duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for travel. And this duty is not fully discharged by making the traveled part of the street safe. If there are dangerous places near the usually traveled part of the street, although outside of it, it is the city's duty to use ordinary care to protect from injury a person lawfully using the street in a reasonably prudent manner. Higert v. City of Greencastle, 43 Ind. 574. See Murphy v. Gloucester, 105 Mass. 470; Hey v. Philadelphia, 81 Pa. 44; City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98.

It is well settled that the owner of premises is not liable for injuries from pitfalls not intended to hurt intruders, where there has been neither an express nor implied invitation to come upon or pass over the premises. This is upon the theory that the owner has done nothing to produce an injury to the person who voluntarily invades his premises. See Evansville, etc., R. Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; Gillespie v. McGowan, 100 Pa. 144; McAlpin v. Powell, 70 N.Y. 126, 26 Am. Rep. 555; Hargreaves v. Deacon, 25 Mich. 1; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767.

In City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155, the court said: "Whoever while passing along, or when properly in a public street, suffers an injury, while exercising the degree of care which the law requires of such persons, by falling into an excavation which has been made in or near such street, is entitled to maintain an action for such injury against the person making the excavation. In such a case, the person making the excavation comes under an obligation to make it safe in respect to all persons who have a right to use the street."

The complaint avers that appellee did not know of the obstruction in the culvert and had no notice or knowledge of the accumulation of water at the side of the street, and that the boy's death was caused without any fault on the part of appellee or the boy. It will certainly not be contended that a parent, having no knowledge of any danger, was nevertheless guilty of negligence in permitting a child seven years old to go upon a public street without an attendant.

It is argued that a boy seven years of age of ordinary intelligence and experience is not conclusively non sui juris, but that he may be guilty of contributory negligence, and that as it is a question for the jury to say whether he is of sufficient understanding to be guilty of contributory negligence the complaint should aver facts from which it could be determined that he did not comprehend the danger to which he was subjected. If the child was sui juris and the facts specifically averred showed his own negligence contributed to his injury, there could be no recovery although there is the general averment that he was free from fault. If the court can say as matter of law that the child was non sui juris it was not necessary to aver that the child was without fault. In the following cases, in actions by parents for damages for the death of a child ranging in ages from two years to seven years and two months, caused by the negligence of others, it was held not necessary to aver that the child was free from fault. Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179, 6 N.E. 310; Evansville, etc., R. Co. v. Wolf, 59 Ind. 89; Jeffersonville, etc., R. Co. v. Bowen, 40 Ind. 545; Pittsburgh, etc., R. Co. v. Vining's, 27 Ind. 513. See, also, Terre Haute, etc., Co. v. Tappenbeck, 9 Ind.App. 422, 36 N.E. 915; Louisville, etc., R. Co. v. Sears, 11 Ind.App. 654, 38 N.E. 837; Citizens' St. R. Co. v. Stoddard, 10 Ind.App. 278, 37 N.E. 723.

In Beach on Contributory Negligence (3rd ed.), § 117, the author says: "It is a question of capacity, and it has been found a very difficult question, and has been, in many courts, a very fruitful source of controversy, as to what age is sufficient to constitute an infant sui juris. Unless the child is exceedingly young it is usually left to the jury to determine the...