City of Terre Haute v. Hudnut

• Decision Date: 01 November 1887
• Docket Number: 12,893
• Citation: 13 N.E. 686,112 Ind. 542
• Parties: The City of Terre Haute v. Hudnut et al
• Court: Indiana Supreme Court

13 N.E. 686

112 Ind. 542

The City of Terre Haute v. Hudnut et al

No. 12,893

Supreme Court of Indiana

November 1, 1887

Petition for a Rehearing Overruled Dec. 28, 1887.

From the Vigo Superior Court.

The judgment is affirmed, at the cost of the appellant.

B. E Rhoads, E. F. Williams, T. A. Foley, H. C. Pugh and H. B Jones, for appellant.

C. F McNutt, S. B. Davis and S. C. Davis, for appellees.

OPINION

Elliott, J.

The complaint of the appellees seeks to recover damages for injuries alleged to have been caused by the negligence of the municipal authorities in constructing and maintaining sewers.

One of the principal questions argued by counsel arises on the ruling excluding evidence offered by the appellant. The purpose of appellant in offering this evidence was to prove that the defect in the system of sewers was in the plan, and not in the work of executing it, and that the defect was not the result of negligence, but of an error of judgment. It has long been the law in this State that a municipal corporation is liable for negligence in devising the plan of a sewer constructed by it, as well as for negligence in the manner of doing the work. Of course, as long as no work is done under the plan no liability can arise, nor can a liability exist where there is nothing more than a failure to adopt a plan. But where a plan is adopted and carried into execution, then there is a liability if there was negligence in devising the plan. It is the duty of the municipal corporation to exercise reasonable care in providing a plan, as well as in doing the work under it.

In the case of City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821, the cases were collected, and it was said, among other things, that "the doctrine is not only sustained by authority, but is sound in principle. Suppose that the common council of a city determine to build a sewer, and cover it with reeds, can it be possible that the corporation can escape liability on the ground that the common council erred in devising a plan? Or, to take such a case as City of Indianapolis v. Huffer, supra, suppose the common council undertake to conduct a large volume of water through a culvert capable of carrying less than one-tenth of the water conducted to it by the drains constructed by the city, can responsibility be evaded on the ground of an error of judgment? Again, to take an illustration from a somewhat different class of cases, suppose the common council to devise a plan for a bridge that will require timbers so slight as to give way beneath the tread of a child." From the rule expressed in so many of our cases we can not depart, for it is not only well sustained by authority, but is right in principle. Morrill City Neg. 86.

While our cases have always held that municipal corporations are liable for negligence in devising a plan, they have from first to last declared that there is no liability unless there is negligence. Rice v. City of Evansville, 108 Ind. 7 (58 Am. R. 22, 9 N.E. 139); City of North Vernon v. Voegler, supra; City of Crawfordsville v. Bond, 96 Ind. 236; City of Evansville v. Decker, 84 Ind. 325 (43 Am. R. 86); Cummins v. City of Seymour, 79 Ind. 491 (41 Am. R. 618); Weis v. City of Madison, 75 Ind. 241 (39 Am. R. 135); City of Indianapolis v. Huffer, 30 Ind. 235; Stackhouse v. City of Lafayette, 26 Ind. 17 (89 Am. Dec. 450); City of Logansport v. Wright, 25 Ind. 512.

It is, therefore, a question of paramount importance whether the municipal authorities exercised due care in securing a plan, for if they did exercise such care, then their error is one of judgment which can not create a liability. It is, however, negligence for men unskilled in the business of preparing plans for sewers to act upon their own judgment in cases where skill is required. Bradbury v. Goodwin, 108 Ind. 286, 9 N.E. 302. It is their duty to use reasonable care to procure the services of men skilled in such affairs, and if they fail to exercise this care they are guilty of negligence for which the corporation must answer. Undertaking to exercise judgment without skill in a matter which requires skill is not a mere error of judgment, but it is negligence. This is a familiar principle pervading all branches of jurisprudence. A man who undertakes as a lawyer to conduct an action at law without possessing skill is negligent; so, too, one who undertakes to treat a sick or wounded man as a physician or surgeon without possessing a fair degree of professional knowledge is guilty of a breach of duty. A mechanic who undertakes to build a house is liable in damages if, through ignorance, he does his work unskilfully. Negligence, according to Judge Cooley's definition, is "The failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand." Cooley Torts, 630; Brown v. Congress, etc., St. R. W. Co., 49 Mich. 153, 13 N.W. 494.

If a municipal corporation undertakes the work of constructing a system of sewers, in a case where the assistance of men skilled in such matters is essential to secure sewers that shall carry off the water conducted into them, without using reasonable care to procure such assistance, there is an absence of "the precaution and vigilance which the circumstances justly demand." If, however, the municipal authorities do exercise reasonable care in securing such assistance, and do exercise reasonable care in securing the employment of fair care and skill, they are not guilty of negligence. If, after bringing into exercise reasonable care to select skilled persons, and in securing the exercise of their skill, there is still a defect in the system, it must be attributed, not to negligence, but to an error of judgment. The case is strictly analogous to that of a railroad company sought to be held liable by one of its employees. In such cases it is uniformly held, that if ordinary care is used in the selection of the co-servants the company is not liable, although it may turn out that the co-servant was not capable of performing the duties entrusted to him. So, here, if the municipal corporation uses reasonable care to secure and put into exercise the services of competent engineers, it ought not to be held liable, although it does turn out that a mistake was made. It would impose a burden upon municipal corporations that no principle of right or justice warrants to hold them accountable where they have exercised reasonable care to secure a perfect and an adequate system of sewerage.

The principle which we are endeavoring to bring out is thus declared in Johnston v. District of Columbia, 1 Mackey 427: "In the next place, a mere error of judgment in the construction of such work does not seem, on the authorities, to be a ground of action in the absence of carelessness in the selection of a plan, or the employment of proper agents to devise and execute it." A similar line of reasoning is pursued in Van Pelt v. City of Davenport, 42 Iowa 308, where it was said: "The city can not be held liable unless for some neglect or omission of duty or negligence in its performance." At another place in the same opinion it was said: "As the city must act through the agency of others, it was its duty to select a competent engineer. When such selection is made, the city has in that regard discharged its duty, and no direct negligence or omission is attributable to it. If a competent engineer acts in good faith in drafting the plans of a culvert, and honestly believes that he is making it large enough to accomplish the desired purpose, then no negligence of the servant is attributable to the principals. If he is sufficiently competent and makes a mistake after the honest exercise of his best judgment, it is such a mistake as is inseparable from human action. The making of such mistake can not be attributed to negligence, for negligence is the failure to exercise ordinary care."

It is possible for a common council to act negligently in devising a plan, as well as in any other matter. If that body undertakes to prosecute a public work which requires a plan, and that plan can only be devised and prepared by skilful or experienced men, it would be negligence for it to undertake the work without exercising reasonable care to secure the assistance of such men. A prudent man certainly would not undertake a work of that character without the aid of competent men, and a city is held to substantially the same degree of care as individuals. Lehn v. City of San Francisco, 66 Cal. 76, 4 P. 965; Barnes v. District of Columbia, 91 U.S. 540, 23 L.Ed. 440.

Deliberation on the part of the common council is futile unless the members have a fair knowledge of the matter which forms the subject of their deliberation. Men may deliberate to the end of time without accomplishing any useful purpose unless they possess knowledge of the thing they are considering. If councilmen are not skilled in devising plans for sewers, no length of time spent in deliberation can establish the fact that due care was exercised. Due care implies the employment of such means as will secure knowledge, not a deliberation without knowledge. Men who take no means to secure knowledge essential to intelligent deliberation do not exercise that care which the law requires. If, in a case like this, councilmen proceed without knowledge, no matter how slowly, they do not exercise care; but if they use reasonable means to secure knowledge, and with deliberate care act upon it when secured, they are not negligent. If reasonable care is used to secure the preparation of plans by competent men, and ordinary care is used to see that the skill of the engineer or expert is brought into exercise, then there is no negligence, and can be...