City of Indianapolis v. Emmelman

• Citation: 9 N.E. 155,108 Ind. 530
• Parties: City of Indianapolis v. Emmelman.
• Decision Date: 16 November 1886
• Court: Supreme Court of Indiana

108 Ind. 530

9 N.E. 155

City of Indianapolis

v.Emmelman.^a1

Supreme Court of Indiana.

November 16, 1886.

Appeal from superior court, Marion county.

D. V. Burns and C. S. Denny, for appellant. Duncan, Smith & Wilson, for appellee.

Mitchell, J.

This action was brought against the city of Indianapolis by Henry Emmelman, to recover damages for wrongfully causing the death of the plaintiff's infant son. The complaint charges that on the twenty-third day of July, 1883, the city of Indianapolis was engaged in constructing a bridge over Pleasant run, a small stream of water running through a portion of the city, at a point where Spruce street crossed the above-mentioned stream. It is alleged that preparatory to the erection of the proposed bridge the city caused a deep square hole to be dug in the bed of the stream, which hole had abrupt perpendicular sides, and which became and remained filled with water. During the progress of the work the city constructed a levee or dam, from the edge of the stream out to the hole, so as to prevent the water from standing in the bed of the stream between the hole and the north bank, and in such manner as to afford an easy approach over the levee to the pit or hole. It was averred, further, that a large number of families having small children resided in the immediate neighborhood of the crossing of Spruce street over the stream, and that many small children were accustomed to play in that vicinity, which fact was well known to the defendant. The water outside of the hole was only a few inches in depth, yet the defendant, notwithstanding it knew all the facts, negligently failed to place any barriers or warning of danger about the pit, so as to prevent children from falling in when its workmen quit the premises. The complaint avers that the plaintiff had no knowledge of the existence of the pit, or of any danger in the vicinity, and that the boy was too young, being about five years old, to appreciate the danger; that on the date first above mentioned the plaintiff's son, without any fault whatever on the part of the plaintiff, while the hole was so negligently left unguarded and exposed, fell into the pit, and was drowned.

A demurrer to this complaint was overruled, and the propriety of this ruling is the first question presented. The initial proposition upon which the appellant rests its argument against the sufficiency of the complaint is that it does not appear from the facts averred that the city was guilty of any breach of duty in respect to the plaintiff or his child. That the liability of the city can only be affirmed upon the theory that it has violated its duty in the premises is too clear for serious controversy. Speaking upon the subject, as applied to an adult, this court in the case of Evansville, etc., Co. v. Griffin, 100 Ind. 221, used the following language: “Before it can be affirmed that the appellant was negligent, with respect to the transaction concerning which its omission is imputed to it as wrongful, it must appear that it was under some legal duty or obligation to the plaintiff, at the time and place the injury occurred, which was left undischarged. If it is liable at all, this is the foundation upon which its liability rests.” Lary v. Cleveland, etc., Co., 78 Ind. 323. In respect to cases such as we are considering, a learned author says: “It is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is strangely lost sight of, viz., that no action arises without a breach of duty.” 2 Thomp. Neg. 1183, note.

With this rule in view, and with the further concession that, in dealing with cases which involve injuries to children, courts and juries have sometimes strangely confounded legal obligation with sentiments that are independent of law, it must nevertheless be kept in mind that wherever an adult may be, without incurring the imputation of being an intruder, a child may also go, free from the like imputation. The same circumstances which would justify a recovery by one who had reached years of discretion, who sustained an injury from the act of another, while free from fault, would justify a recovery by an infant of such years as to be incapable of fault, provided its parents or guardian was also guilty of no neglect which could be imputed to the child, and so, conversely, except when a child is seen in time so that injury to it might be avoided, persons who are lawfully using or carrying on business on their own premises are not liable for injuries to children, unless, under the circumstances, they would have been liable to others who were equally free from fault.

The conclusion to be drawn from the approved cases on the subject is that the owner of premises, who has neither expressly nor impliedly invited the public to come upon or pass over his grounds, is under no legal obligation to keep them free from pitfalls, or in a condition of safety, for those who, in the pursuit of their own pleasure or convenience, pass over such premises, even though it be with the acquiescence of the owner. Persons passing over premises of that description exercise the privilege, with its attending perils, and this without distinction as to whether or not they have arrived at an age of discretion. Unless contrivances are placed on such premises with an actual or constructive intent to hurt intruders, the proprietor is not liable for injuries resulting to persons by reason of the condition in which the premises have been left, or from the prosecution of a business thereon in which the owner had a right to engage. Evansville, etc., Co. v. Griffin, 100 Ind. 221-225, and cases cited; Gillespie v. McGowan, 100 Pa. St. 144; Gramlich v. Wurst, 86 Pa. St. 74; S. C. 27 Amer. Rep. 684; Cauley v. Pittsburgh, etc., Co., 95 Pa. St. 398; S. C. 40 Amer. Rep. 664; McAlpin v. Powell, 70 N. Y. 126;Hargreaves v. Deacon, 25 Mich. 1;Burdick v. Cheadle, 26 Ohio St. 393.

The foregoing, and many other analogous cases which might be cited, proceed upon the theory that the person sought to be held liable had done nothing to produce injury to others who voluntarily strayed upon or invaded the premises on which the injury occurred. In all such cases the owner may dig an excavation on his own land, not substantially adjoining a public highway, and no action lies against him by one who has fallen into the excavation. Hardcastle v. South...