City of Evansville v. Behme
| Citation | 97 N.E. 565,49 Ind.App. 448 |
| Decision Date | 16 February 1912 |
| Docket Number | 7,516 |
| Parties | CITY OF EVANSVILLE v. BEHME |
| Court | Court of Appeals of Indiana |
From Warrick Circuit Court; Roscoe Kiper, Judge.
Action by Nicholas Behme against the City of Evansville. From a judgment on a verdict for plaintiff for $ 3,000, 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.
The only questions presented for decision arise on 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 appellant's failure to discuss them in its brief, or to cite authorities in their support.
It is first insisted by appellant that the evidence is not sufficient to sustain the verdict. The evidence shows, practically without dispute, that appellee, on the evening of January 2, 1907, between 6 o'clock 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.
There is no question as to the duty of the city to use reasonable care to keep its streets 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 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 (1903), 160 Ind. 597, 66 L. R. A. 119, 67 N.E. 443; City of Indianapolis v. Marold (1900), 25 Ind.App. 428, 58 N.E. 512; City of Logansport v. Dick (1880), 70 Ind. 65, 36 Am. Rep. 166; Dillon, Mun. Corp. (4th ed.) §§ 1027, 1030.
Appellant does not deny that the injury to appellee was caused by a defective condition of the street, 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, that appellant was under no duty to place lights or guards about such defect in the street, for the reason that the evidence shows that the city had no notice or knowledge of its existence prior to the injury for which this action was brought.
The evidence upon this point shows that said defect was caused by an excavation that was 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 December 31, 1906, or January 1, 1907, and was eighteen inches deep, three feet long and about two feet wide. The plumber discovered the trouble in the forenoon of January 1, 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 testified 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 January 2 he passed the place where the accident afterward occurred, and that the holes made by the plumber were all filled up even with the surface of the street. There is evidence that other excavations had been made by the city water-works department in the street 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 was left unfilled, or that any of them on the afternoon or evening of January 2, or at any time after being filled, presented such an appearance as to indicate that it rendered the street dangerous or unsafe for travel.
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 street, unless such condition existed for such a length of time that notice could be implied. Turner v. City of Indianapolis (1884), 96 Ind. 51; City of Madison v. Baker (1885), 103 Ind. 41, 2 N.E. 236; Town of Monticello v. Kennard (1893), 7 Ind.App. 135, 34 N.E. 454; Lyon v. City of Logansport (1894), 9 Ind.App. 21, 35 N.E. 128; Town of Lewisville v. Batson (1901), 29 Ind.App. 21, 63 N.E. 861.
If however, the excavations were made and...
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