City of Evansville v. Behme
| Decision Date | 16 February 1912 |
| Docket Number | No. 7,516.,7,516. |
| Citation | 49 Ind.App. 448,97 N.E. 565 |
| Parties | CITY OF EVANSVILLE v. BEHME. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Warrick County; Roscoe Kiper, Judge.
Action by Nicholas Behme against the City of Evansville. From a judgment for plaintiff, defendant appeals. Affirmed.Albert J. Veneman and George A. Cunningham, for appellant. E. J. Crenshaw and P. C. Gould, for appellee.
Appellee recovered a judgment in the court below for damages resulting from personal injuries sustained by him on account of being thrown from his wagon, by reason of a defect in one of the streets of the city of Evansville.
[1] The only question presented for decision arises upon the motion for a new trial. The questions thus presented relate to the sufficiency of the evidence to sustain the verdict and to certain alleged errors of the trial court in giving certain instructions and in refusing to give certain other instructions requested by appellant. All other errors assigned are waived by a failure on the part of appellant to discuss them in his brief or to cite authorities in their support.
It is first insisted by appellant that the evidence is not sufficient to sustain the verdict of the jury. The evidence shows practically without dispute that appellee on the evening of January 2, 1907, between 6 and 7 o'clock, was driving on East Franklin street in the city of Evansville, and that one of the wheels of the wagon in which he was riding dropped into an excavation in the improved part of said street, causing him to be thrown out and injured.
It is not claimed that appellee was guilty of contributory negligence; but the sole question presented under the evidence is its sufficiency to show negligence on the part of the city.
[2][3] There is no question as to the duty of the city to use reasonable care to keep the street in question in a reasonably safe condition for travel. This duty is so well recognized as to require no citation of authorities in its support. The courts have also repeatedly held that this duty cannot be delegated to others so as to relieve the city from liability for an injury resulting from a breach of such duty. City of Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119;City of Indianapolis v. Marold, 25 Ind. App. 428, 58 N. E. 512;City of Logansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166; Dillon, Municipal Corporations (4th Ed.) §§ 1027-1030.
Appellant does not deny that the injury to appellee was caused by a defective condition of the street, and that the defective place was not guarded, and that no lights were placed there on the night of the accident to warn those using the street of its existence. It is claimed, however, on behalf of appellant, that it was under no duty to place lights or guards about such defect in the street for the reason that the evidence shows without dispute that the city had no notice or knowledge of its existence prior to the injury for which this action is brought. The evidence upon this point shows that the defect which produced the injury to appellee was caused by an excavation made in the traveled portion of the street by a plumber employed by Mr. Eichel for the purpose of locating a leak in a sewer or water main. This excavation was made on the 31st day of December, 1906, or the 1st day of January, 1907, and was 18 inches deep, 3 feet long, and about 2 feet wide. The plumber discovered the trouble on the 1st day of January in the forenoon after digging four or five holes. After repairing the leak, the plumber ordered his workmen to fill up the holes and they began this work in the forenoon of that day, and the plumber testifies that he returned to the place in the afternoon and found them still at work filling the trenches. A witness who was a member of the fire department of the city of Evansville testified that on the 2d day of January he passed the place where the accident afterward occurred, and that the holes made by the plumber were all filled up even with the street. There is evidence that other excavations had been made in the street by the city waterworks department near the place where the accident happened, but the evidence shows without dispute that the injury was caused by one of the holes dug by the plumber, and there is no evidence to show that any of these excavations were left unfilled, or that any of them on the afternoon or evening of January 2d or at any time after they had been filled presented such an appearance as to indicate that they rendered the street dangerous or unsafe for travel.
[4] Appellant claims that, under such circumstances, the city was not negligent in failing to place barriers to protect the place, or lights to warn travelers of its presence, even though it turned out that the excavations were not properly filled so as to make the street reasonably safe. If the excavations were made and filled by a person not acting for the city or under its authority or with its express sanction, this would be correct, as in such a case the city cannot be held liable for a failure to take precautionary measures in the absence of knowledge of the unsafe condition of the...
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