City of Indianapolis v. Williams

Decision Date01 April 1915
Docket NumberNo. 8551.,8551.
Citation58 Ind.App. 447,108 N.E. 387
PartiesCITY OF INDIANAPOLIS v. WILLIAMS.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Johnson County; Wm. E. Deupree, Judge.

Action by Kate Williams, as guardian, against the City of Indianapolis. Judgment for plaintiff, and defendant appeals. Affirmed.Joseph B. Kealing, Merle N. A. Walker, and Newton J. McGuire, all of Indianapolis, and William Featherngill, of Franklin, for appellant. Walter L. Carey and L. Ert Slack, both of Indianapolis, for appellee.

MORAN, J.

On September 11, 1910, Fred Williams, a boy 11 years old, was drowned while in swimming in Pogue's run in the city of Indianapolis. He lost his life in what is known as the “sewer hole” at the intersection of Wisconsin street and Pogue's run. To the complaint in three paragraphs, charging appellant with negligently causing the death of Fred Williams, demurrers were filed and overruled, and the cause put at issue by an answer of general denial. A trial by a jury was had in the Johnson circuit court, where the cause had been venued, and a verdict rendered in favor of appellee in the sum of $2,250; a judgment on verdict, from which this appeal is prosecuted.

The errors assigned are: (1) Overruling of the demurrer to the complaint; (2) overruling of the separate demurrer to the second and third paragraphs of complaint; (3) overruling of motion to strike out certain interrogatories during the making of the issues; (4) overruling of appellant's motion for judgment on answers to interrogatories; and (5) overruling of appellant's motion for a new trial.

The various paragraphs of complaint do not differ in theory. The material allegations of the first paragraph are that appellee is the guardian of Andrew J. Williams, a person of unsound mind, who for many years had been confined in the Indiana Central Hospital for the Insane. Appellee and Andrew J. Williams were the mother and father of Fred Williams, deceased, who was 11 years old at the time of his death. Appellant is a municipal corporation, organized under the laws of the state of Indiana. Running east and west in the city of Indianapolis is an improved street known as Wisconsin street, and running through the city is a stream known as Pogue's run, which intersects with Wisconsin street within the corporate limits of the city, in a thickly populated part thereof. A large sewer empties into the stream at the intersection of the same and Wisconsin street, which sewer is a part of the sewerage system of the city. The sewer empties into the stream almost in the center of Wisconsin street. The sewer was so constructed by appellant that the mouth of the same was several feet above the surface of the water in the stream and the flow of the water and sewage therefrom falls a great distance into the stream. Many months prior to September 11, 1910, the sewer had washed out, worn, and made a large, deep, and dangerous hole in the bed of the stream, about eight feet in diameter, and about the same depth, and was, for many months prior to the date above mentioned, filled with water and sewage.

Appellant carelessly and negligently caused and allowed the sewer to be constructed, so as to make it wear a hole in the bottom of the stream, by the water and sewage flowing out of the month thereof. Appellant carelessly and negligently allowed the hole to remain in a dangerous condition for many months prior to September, 1910. Appellant knew of the existence, position, and condition of the hole for several months prior to said date and permitted it to remain in a dangerouscondition before Fred Williams lost his life, therein. Appellant failed to place guards, notices, or warnings of any kind at or near the hole or ground adjacent thereto. The ground surrounding the stream at this point was, and had been prior to the death of Fred Williams, used by children as a playground, with knowledge of appellant. The stream at this place and the ground adjacent attracted children thereto for the purpose of playing and wading in the stream. Appellant took no steps to warn or protect children from the danger of falling into the hole. On September 11, 1910, Fred Williams with other boys near his age were attracted by natural instinct to the stream and playground at this place, and while he was wading in the stream, he stepped into the hole, and was drowned and poisoned by the water and poisonous substances in the hole. He was not acquainted with the stream at this place, and did not know of the existence of the hole. He acted under the circumstances as an ordinary prudent person of his age would have acted for his own safety. The father and mother did not know that their son was near the stream at the time, and had no knowledge of the existence of the hole in the stream. Their son was a bright, healthy, industrious boy, possessed of no bad habits, and was earning $4 per week at the time of his death. Appellee and Andrew J. Williams were entitled to his earnings until he arrived at the age of 21 years. The funeral and other necessary expenses amounted to $150. Within 60 days from the date of his death, notice was given to appellant, containing a brief general description of the time, place, and cause of the death of Fred Williams. Appellee was damaged in the sum of $5,000.

The facts alleged in the second paragraph of complaint differ from those alleged in the first, in that it is alleged that the sewer empties into Pogue's run in the vicinity of and near Wisconsin street; and that the grounds surrounding the same were unimproved and open to the public; and that worn and beaten paths used by the public led through the grounds from the street along the banks of the stream to the mouth of the sewer and hole; and that the hole was hidden, unseen, and dangerous.

The third paragraph states the same general facts alleged in the first, except that it alleges in a general way that the sewer empties into the stream within the corporate limits of the city without designating the place.

It will be noticed that the first paragraph of complaint alleges that the sewer emptied into a stream in a public street, and the second paragraph alleges that it emptied into a stream near a public street. These allegations give the paragraphs, respectively, the benefit of the location of the alleged source of danger in a public place. The third paragraph of complaint alleges generally, as aforesaid, that the sewer emptied into a stream. The facts pleaded in this paragraph are less favorable to the pleader in this particular than the first and second paragraphs of complaint.

[1] If the third paragraph of complaint is sufficient to withstand a demurrer, an examination of the first and second paragraphs will be unnecessary, and if insufficient to withstand a demurrer a further examination would be useless, as the verdict does not disclose on which paragraph it rests. Lake Erie & Western R. R. Co. v. McFall, 165 Ind. 574, 76 N. E. 400;Baltimore & Ohio, etc., R. R. Co. v. Hunsucker, 33 Ind. App. 27, 70 N. E. 556.

As a matter of convenience and brevity our presentation of questions arising upon the overruling of the demurrer will be addressed to the third paragraph of complaint.

[2] Appellant argues that, it being a municipal corporation, it has the right to exercise certain powers, such as constructing sewers and sidewalks, and that it cannot be held liable for consequential injuries resulting from the exercise of such powers. A municipal corporation cannot be held liable for consequential injuries that result from the construction of public works, in the absence of negligence or want of due care or skill, and this includes the construction, maintenance, and operation of sewers and streets. Northern Transportation Co. v. City of Chicago, 99 U. S. 636, 25 L. Ed. 336;City of Richmond v. Test et al., 18 Ind. App. 482, 48 N. E. 610;Weis v. City of Madison, 75 Ind. 241, 39 Am. Rep. 135;City of Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86;Rice v. City of Evansville, 108 Ind. 7, 9 N. E. 139, 58 Am. Rep. 22;Peck v. City of Michigan City, 149 Ind. 670, 49 N. E. 800.

[3] Nor is a city liable for injuries that flow from a failure on the part of the city to perform a governmental function, nor for its discretionary acts. City of Vincennes v. Spees, 35 Ind. App. 389, 74 N. E. 277;Town of Spencer v. Mayfield, 43 Ind. App. 134, 85 N. E. 23;City of Vincennes v. Thuis, 28 Ind. App. 523, 63 N. E. 315.

[4] The true measure of the duty of a municipality as to its streets adduced from the authorities is that it is required to keep its streets and thoroughfares in a reasonably safe condition for travel in the ordinary manner or mode of travel, and it is not required to guard against possible danger, but only such as might reasonably be anticipated. 2 Dillon on Mun. Corp. (4th Ed.) § 1019; Town of Spencer v. Mayfield, 43 Ind. App. 134, 85 N. E. 23.

The general propositions as to the measure of duty of a municipality to a traveler upon a street afford but very little assistance in this case in arriving at the value of the complaint tested by demurrer, for the reason that the child in this case was not a traveler upon the street at the time he lost his life within the meaning of the principles above announced.

[5][6][7][8] If the third paragraph of complaint states a cause of action, it is not on the theory of a traveler being injured by reason of a defect in a street; but upon the doctrine of an “attractive nuisance,” or the doctrine upon which rests what is known as the “turntable cases.” Does this doctrine apply with the same force to a municipal corporation as it does to an individual or private corporation? It may be stated generally that within a limited scope a municipal corporation stands in the same relation to the law as any other corporation. “Municipal corporations are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence...

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