City of Lafayette v. Clark

• Decision Date: 02 November 1921
• Docket Number: 10,863
• Citation: 132 N.E. 651,76 Ind.App. 565
• Parties: CITY OF LAFAYETTE v. CLARK, ADMINISTRATRIX
• Court: Indiana Appellate Court

132 N.E. 651

76 Ind.App. 565

CITY OF LAFAYETTE v. CLARK, ADMINISTRATRIX

No. 10,863

Court of Appeals of Indiana

November 2, 1921

From Carroll Circuit Court; Benjamin F. Carr, Judge.

Action by Catherine Clark, administratrix of the estate of Clifford Clark, deceased, against the city of Lafayette. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Arthur D. Cunningham and Pollard, Cartwright & Wason, for appellant.

Charles L. Vaughan, Hanna & Hall, Charles V. McAdams and Clyde H Jones, for appellee.

OPINION

BATMAN, J.

This is an action by appellee to recover the damages sustained by the next of kin of Clifford Clark, whose death, it is alleged, was caused by the following acts of negligence on the part of appellant: (1) In constructing and maintaining at the intersection of two of its streets a dangerous obstruction, consisting of a gutter and catch-basin depressed seven or eight inches below the surface of said streets, and certain stone slabs set in connection therewith which extended out into said streets a distance of three feet, and seven or eight inches above the grade thereof; (2) in permitting a large boulder, twelve inches in diameter, to be and remain in one of said streets for many years, within a few inches of the obstruction above described; (3) in failing to have a street light burning at said street intersection on the night that appellee's decedent received his fatal injuries. The complaint is in a single paragraph, to which an answer in general denial was filed. The cause was submitted to a jury for trial, which returned a verdict in favor of appellee, together with its answers to certain interrogatories. Appellant filed a motion for judgment on these answers, notwithstanding the general verdict, and also a motion for a new trial, each of which was overruled. A judgment on the general verdict in favor of appellee followed. Appellant is now prosecuting this appeal on an assignment of errors, which requires a determination of the questions hereinafter considered.

Appellant has not stated in its brief any proposition or point on the action of the court in overruling its motion for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and has thereby waived any error in that regard. Its first contention is based on a claim that the verdict of the jury is contrary to law. In support of this reason for a new trial it insists that the alleged obstruction in the street in question was placed therein in pursuance of a plan adopted by it for the improvement of the same; that, being a municipal corporation, the adoption of such plan was the exercise of a quasi legislative or judicial function, and hence it was not liable for any error in judgment in so doing. It is well settled, that, while a municipal corporation is not liable for mere errors of judgment in adopting a plan for the improvement of a street, it may be liable where a defective plan is adopted, resulting from negligence in making the selection, rather than from error in judgment. City of North Vernon v. Voegler (1885), 103 Ind. 314, 2 N.E. 821; Rice v. City of Evansville (1886), 108 Ind. 7, 9 N.E. 139, 58 Am. Rep. 22; City of Terre Haute v. Hudnut (1887), 112 Ind. 542, 13 N.E. 686; City of Valparaiso v. Adams (1890), 123 Ind. 250, 24 N.E. 107; City of Peru v. Brown (1894), 10 Ind.App. 597, 38 N.E. 223; Elliott, Roads and Streets (2d ed.) § 473; Hart v. Neillsville (1905), 125 Wis. 546, 104 N.W. 699, 1 L. R. A. (N. S.) 952, 4 Ann. Cas. 1085; Giaconi v. City of Astoria (1911), 60 Ore. 12, 118 P. 180. As said in the case last cited: "Governmental powers should be exercised in accordance with the principles of natural justice and common sense. A municipality ought not to be upheld by the courts in the heedless adoption, under the guise of legislation, of some crude scheme which cannot be accomplished without the infliction of direct, as distinguished from consequential, injuries upon some of its citizens. To hold otherwise would be a long step towards sanctioning the ruthless exercise of arbitrary power. Immunity for mere error of judgment in matters of governmental cognizance ought not to be overturned or impaired; but when public works are planned with such carelessness as to amount to absence of judgment the reason of the rule fails, and the application thereof fails with it." It follows that the mere fact, if it be a fact, that the alleged obstruction was placed in the street pursuant to an adopted plan, would not necessarily relieve appellant from liability.

It is also insisted that the failure of a municipal corporation to keep its streets in a reasonably safe condition for travel is the failure to discharge a purely governmental duty for which there is no liability. In support of this contention appellant has cited the case of Board, etc. v. Allman, Admr. (1895), 142 Ind. 573, 42 N.E. 206, 39 L. R. A. 58, as well as a number of decisions in other jurisdictions. However, we note that in the case of Board, etc. v. Allman, Admr., supra, the Supreme Court made a distinction between the powers of counties with reference to bridges, and the powers of cities over streets. In the later case of Town of Boswell v. Wakley (1897), 149 Ind. 64, 48 N.E. 637, the Supreme Court approved this distinction, and this court subsequently recognized the same in the case of City of Connersville v. Snider (1903), 31 Ind.App. 218, 67 N.E. 555. Being bound by the decisions of the Supreme Court on the question presented, we hold that appellant's contention is not well taken.

Appellant contends that the verdict is not sustained by the evidence, either as to its negligence or the contributory negligence of appellee's decedent. It suffices to say in this regard, that there is some evidence tending to sustain the verdict on each of these questions. This being true, we are not permitted to weigh the evidence to determine where the preponderance lies, but are bound by the determination of the jury in that regard. Workman v. Rhodes (1917), 65 Ind.App. 413, 117 N.E. 526.

Contention is also made that the court erred in not permitting certain witnesses to testify that the same condition in the street which it is alleged constituted an obstruction and resulted in the death of appellee's decedent, existed at other places. The purpose of this evidence, as claimed by appellant, was to show that such condition was part of a general plan for the improvement of its streets. While the admission of such evidence would have shown such conditions existed elsewhere in appellant's streets, it would not have tended to show that they were made in pursuance of an adopted plan, which would relieve it from liability in case injury resulted therefrom. In order for a plan to serve such purpose, there must not only be an absence of negligence in its selection, but it must appear to have been adopted by the common council in the exercise of its discretionary authority. As said in the case of Hart v. Neillsville, supra: "While the law is well settled that, in case the governing body of a city, duly authorized thereto by its charter, adopts a plan for a sewage system and executes the same, it is immune...