City of Michigan City v. Boeckling

• Decision Date: 29 January 1890
• Docket Number: 13,893
• Citation: 23 N.E. 518,122 Ind. 39
• Parties: The City of Michigan City v. Boeckling
• Court: Indiana Supreme Court

23 N.E. 518

122 Ind. 39

The City of Michigan City v. Boeckling

No. 13,893

Supreme Court of Indiana

January 29, 1890

From the La Porte Circuit Court.

Judgment affirmed.

M. Nye and W. H. Bruce, for appellant.

L. A Cole and J. F. Gallaher, for appellee.

OPINION

Elliott, J.

Franklin is one of the principal streets of Michigan City. The common council of the city, by an ordinance, authorized a track to be laid in that street for the use of a street railway company. The street was covered with planks, and the railway tracks were laid in the center of the roadway. On the first day of November, 1886, the appellee was riding along Franklin street, in a light wagon, drawn by two horses; he was not driving, nor was he taking any part in managing the team, but the team was driven and managed by a man named Oliver. The wheels of the wagon were, as the appellee says, in his testimony, "straddling the east rail of the track," and the wagon was going slowly. In turning out to give way for a wagon approaching from the opposite direction the wheel caught on the bottom of the rail, and the axle of the wagon was broken. When the axle broke the horses began to kick, and to avoid injury from them the appellee leaped from the wagon and was injured. The rails of the track projected above the surface their full height, which was about four inches. The street had been in the condition described for six months prior to the time the accident occurred. There is no evidence proving, or tending to prove that the rails were not such as are ordinarily used in constructing street railways; on the contrary, there is evidence showing that the rails were of the latest and most approved pattern.

The common council had authority to license the street railway company to use the street. It is now well settled that a street may, under proper authority, be used by a company engaged in transporting passengers in cars drawn by horses, and in licensing such a use of its streets a municipal corporation does no wrong and violates no duty. The use which the city licensed the company to make of the street was not dangerous in itself, and the city is, therefore, not liable for the negligence of its licensee. City of Warsaw v. Dunlap, 112 Ind. 576, 11 N.E. 623. Nor does the fact that the city in the ordinance granting the right to use the street required the company to lay and maintain its track in a specified manner make the city liable, although the company may not have conformed to the ordinance. A municipal corporation is not liable for a failure to enforce its ordinances. Wheeler v. City of Plymouth, 116 Ind. 158 (9 Am. St. Rep. 837, 18 N.E. 532); Dooley v. Town of Sullivan, 112 Ind. 451 (2 Am. St. Rep. 209, 14 N.E. 566); McDade v. Chester City, 117 Pa. 414 (2 Am. St. Rep. 681, 12 A. 421). The case of Coast-Line, etc., Co. v. Savannah, 30 F. 646, has no application to such a case as the present.

The basis of the action for an injury sustained because of a defect in a street is the negligence of the municipal corporation in failing to keep the street in a reasonably safe condition for travel. If there is no breach of this duty there is no right of action, and if there is no want of ordinary care there is no breach of duty. A municipal corporation does not warrant the safety of its streets, for its legal obligation is to exercise ordinary care and skill in making and keeping its streets in a reasonably safe condition for travel by persons who exercise ordinary care. The question here, therefore, is, does the evidence show that the city was guilty of negligence.

We regard the facts established by the evidence as sufficient to authorize the inference that there was want of ordinary care on the part of the municipality. The fact that iron rails projected four inches above the planked surface of the street justifies the conclusion of the jury that the city...