City of Richmond v. Mulholland

• Decision Date: 26 November 1888
• Citation: 116 Ind. 173,18 N.E. 832
• Parties: City of Richmond v. Mulholland.
• Court: Indiana Supreme Court

116 Ind. 173

18 N.E. 832

City of Richmond

v.Mulholland.

Supreme Court of Indiana.

November 26, 1888.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action by James E. Mulholland against the city of Richmond for injuries received through the city's negligence.Judgment for plaintiff, and defendant appeals.

Joseph H. Kibbey, for appellant.A. C. Lindemuth and Thomas J. Study, for appellee.

Elliott, J.

The appellee recovered damages for personal injuries resulting from a negligent breach of duty on the part of the appellant in failing to keep one of its streets safe for ordinary travel.The appellant's counsel rest their case upon the proposition that the appellee has no right of action because he was guilty of contributory negligence.If they are right, then the judgmentmust be reversed.A municipal corporation is not an insurer of its streets, but it is bound to use ordinary care and diligence to keep them in a reasonably safe condition.The law presumes that this duty has been performed, and every citizen who lawfully uses the streets is entitled to the benefit of this presumption.But while a citizen may use the streets upon the faith of this presumption, still he is bound to himself exercise ordinary care and diligence.The presumption does not entitle him to proceed heedlessly or negligently.On the contrary, the same principle that requires care and diligence on the part of the municipal corporation requires that he shall himself be careful and prudent.Ordinary care requires that a person should not unnecessarily undertake to pass a place which he knows cannot be passed without incurring a hazard that prudent men would not incur.Where the place is known to be so dangerous that it cannot be passed without great risk of injury, it is negligence to attempt to pass it.Railroad Co. v. Pinchin, 112 Ind. 592, 13 N. E. Rep. 677, and cases cited;Town of Gosport v. Evans, 112 Ind. 133, 13 N. E. Rep. 256, and cases cited.But it is not always that knowledge of a defect in a street can be considered as sufficient, of itself, to establish contributory negligence.Nor is it true in all cases that knowledge that there is some danger will preclude a recovery.Railroad Co. v. Pinchin, supra;City v. Breen, 77 Ind. 29;Murphy v. City, 83 Ind. 76;Nave v. Flack, 90 Ind. 205;Kelly v. Town, 18 N. E. Rep. 217;City of Altoona v. Lotz, 114 Pa. St. 238, 7 Atl. Rep. 240.In the case last named the question was thoroughly discussed, and...