City of Huntington v. Lusch

Decision Date11 March 1904
Citation70 N.E. 402,33 Ind.App. 476
PartiesCITY OF HUNTINGTON v. LUSCH.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Huntington County; J. C. Branyan, Judge.

Action by John Lusch against the city of Huntington. Judgment for plaintiff. Defendant appeals. Affirmed.

Lesh & Lesh, for appellant, Watkins & Morgan, for appellee.

BLACK, J.

The amended complaint of the appellee contained two paragraphs, and the appellant's demurrer to each of them, for want of sufficient facts, was overruled. In each paragraph the appellee sought the recovery of damages for injury to himself and the death of his horse and injury to his vehicle. In the first paragraph it is alleged that by reason of the negligence of the appellant in leaving, or permitting to be left, a large stump on the street of the city, named Front street, along which appellee was driving on or about March 31, 1902, about 120 feet east of its intersection with Briant street, of that city, his horse became scared, and shied at the stump, running off into the river on the north side of the street; that the appellant negligently left the stump in the street; that the stump “was there for some time, to wit, ten days; and that by reason of its being there for a long period the city was bound to take notice of said stump being in said street, and that said defendant was negligent in permitting said obstruction to remain for a long period, and that said city had reasonable time to remove said obstruction, which defendant refused and negligently failed to remove,” etc. In the second paragraph it was alleged that the street in question, for 200 feet or more, was along and on the south bank of Little Wabash river, the bank of which was perpendicular and 10 feet high above the water, which was 8 feet deep; that “there are no barricades or fence” along the top of the bank, or anything to prevent horses hitched to buggies and wagons, and becoming frightened, restless, or unmanageable, from falling into the river from the north side of the street; that on March 31, 1902, the appellee was driving along the street, and by reason of the negligence of the appellant leaving, and permitting to be left, a large stump, that had been torn up by the roots, on the street, the appellee's horse became frightened, and shied to the right, and by reason of the negligence of the city in not erecting barricades on the north side of the street, where the street was unsafe and dangerous, the horse ran to the right, and fell over the bank into the river; that the horse was drowned in the river, etc.; “that said stump was left in said street and said bank on said river left unprotected by barricades for a long time, to wit, two weeks, and so long that defendant knew of such obstruction, and failed to erect barricades, or might have known by the use of ordinary and reasonable diligence,” etc.

The only objection urged against the complaint, fully illustrated by the portions thereof we have set out, is that neither paragraph sufficiently shows notice to the municipal corporation of the alleged defects. It is not alleged in either of the paragraphs of complaint before us that any of the defective conditions stated were caused by the direct act or order of the city or by any person acting under its authority. It is not charged in either paragraph that the city thus placed, or caused to be placed, the stump in the street, but it is alleged in the first paragraph that the appellant negligently left the stump in the street, and that by reason of the negligence of the city in leaving the stump, or permitting it to be left, in the street, the horse shied at the stump, running off into the river. In the second paragraph the absence of barricades, etc., was alleged in the present tense, without any charge of negligence in that allegation. It was further alleged that on a date mentioned the appellee was driving along the street, and that by reason of the negligence of the city in leaving the stump, and permitting it to be left on the street, the horse became frightened and shied, and by reason of the negligence of the city in not erecting barricades the “horse ran to the right, and fell over the bank into the river.”

It is not directly shown that, the city having caused the street to be so made that barricades were necessary to render it safe, it had negligently failed to so render it safe by never having provided reasonably sufficient barricades. It is not certainly shown that the street was rendered unsafe, either by reason of the presence of the stump, or because of the absence of barricades, by the direct act, order, or authority of the municipal corporation.

A city must not only make and keep in a reasonably safe condition the traveled portion of its streets, but also it is required to take such measures as are dictated by ordinary prudence to protect persons lawfully using a street, and exercising therein ordinary care from falling into dangerous places along the side of the street. City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98. But when it is sought to hold a city responsible for an injury to one in making such use of its streets, caused by a defect therein, the fault ascribed to the city being its neglect or omission to keep the street in repair, or caused by a defect therein created by wrongful act of another person, it is a rule of pleading in this state that it is not sufficient merely to charge the municipal corporation with negligence, but the complaint must also contain an averment that the city had notice of the defect which caused the injury, or such facts must be alleged that the court may determine as a legal conclusion therefrom that the city had notice, or under the circumstances ought to have known, of the defect in time to have remedied it before the occurrence of the injury. The city, in such case, is responsible for failure to exercise reasonable diligence to repair or to prevent injury, after knowledge of the dangerous defect, or after it ought to have known of it in the exercise of reasonable care and diligence. It should appear that the...

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2 cases
  • Indiana Union Traction Co. v. Scribner
    • United States
    • Indiana Appellate Court
    • February 17, 1911
    ...admissible in evidence when shown to be reasonably accurate representations of the place or thing in question. City of Huntington v. Lusch, 33 Ind. App. 476-482, 70 N. E. 402; 9 Enc. of Evidence, page 776. They may be shown to be correct representations by witnesses other than the persons w......
  • Indiana Union Traction Company v. Scribner
    • United States
    • Indiana Appellate Court
    • February 17, 1911
    ... ... decedent, and other excursionists from the city of ... Indianapolis, took passage over the electric railway line of ... appellant to Broad ... its introduction. City of Huntington v ... Lusch (1904), 33 Ind.App. 476, 70 N.E. 402; 9 Ency ... Ev. 776, 777; New York, etc., ... ...

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