City of Vincennes v. Spees

• Decision Date: 10 May 1905
• Docket Number: No. 4,712.,4,712.
• Parties: CITY OF VINCENNES v. SPEES.
• Court: Indiana Appellate Court

35 Ind.App. 389

74 N.E. 277

CITY OF VINCENNES

v.SPEES.

No. 4,712.

Appellate Court of Indiana.

May 10, 1905.

On rehearing. Reversed.

For former opinion, see 72 N. E. 531.

WILEY, J.

This action originated in the Knox circuit court, and was venued to the court below, where it was tried. Appellee was plaintiff, and sued appellant to recover damages alleged to have resulted from its negligence. The amended complaint is in a single paragraph, to which a demurrer for want of facts was addressed and overruled. Appellant's motion to require appellee to make her complaint more specific was also overruled. Trial by jury, resulting in a verdict in favor of appellee. Appellant's motion for a new trial was overruled, and judgment pronounced upon the verdict. The several rulings referred to are assigned as errors.

In her amended complaint the appellee avers that on the 9th day of October, 1899, while passing along Seventh street, near Barnett street, in the city of Vincennes, she was injured as follows: “That the defendant on said date, and for a long time prior thereto, carelessly and negligently permitted and suffered a large stone, unguarded and unprotected, to remain along the sidewalk, at the edge thereof, on said Seventh street, near Barnett street, and that the same was suffered and permitted to so remain there by the defendant without any guards, danger lights, or any other means of notifying persons of its presence, who were passing along said street in the nighttime; that said plaintiff on said date, and in the nighttime, when it was very dark, was passing along the sidewalk on said Seventh street in a careful and prudent manner, while the night was very dark, and while so passing along she was unable to see or discover the said obstruction aforesaid on account of the want of guards light on said street, and danger lights to warn passengers thereon, and persons using said street, of the presence of said obstruction. Plaintiff says while she was passing along said street in a careful and prudent manner, without any negligence on her part, she ran against said obstruction, and was violently thrown to the ground, so that she was maimed, bruised, wounded, and lacerated, and suffered great pain of body and mind; that she ran against the same because of the defendant's negligence aforesaid, in not having said street lighted, not having danger signals to show where said obstruction was, and not having the same guarded so that persons using the sidewalk could avoid a collision with said obstruction; that the same was permitted, on account of the negligence of the defendant, to remain at the edge of the said sidewalk, so that persons using the same in the nighttime, as was the plaintiff on this occasion, were likely to run against the same and be injured on account thereof; and that the plaintiff so sustained her injury all on account of the negligence of the defendant, and without any fault or negligence on her part.” It is further charged in the complaint that, by virtue of an ordinance of said city, appellant should have had said street lighted by lights which were provided for said purpose, but that on the occasion of her accident the same were not lighted, and that appellant had no danger signal placed at said stone, or guard of any kind to warn persons of the presence of the same, and to avoid collision with it. The complaint then describes minutely the injuries sustained by appellee, and concludes as follows: “That all of said injuries were inflicted on account of the negligence of the defendant aforesaid, which said defendant had permitted and suffered said stone to remain at the edge of the sidewalk, and so near thereto that persons were likely to collide with the same, who were using said sidewalk, and that the defendant was well aware of its maintenance, or could have been by the exercise of diligence on its part, but that the plaintiff had no knowledge whatever of its presence or existence, and was unaware of its being so situated, and had no knowledge of its existence whatever.”

The first question discussed by counsel is presented by the action of the court in overruling appellant's motion to make the complaint more specific. The motion and the ruling thereon are brought into the record by a bill of exceptions. The case was tried upon the issue joined by the answer to the amended complaint, and the record does not show that any motion to make the amended complaint more specific was ever filed. There is a motion in the record, addressed to the complaint, asking that it be made more specific, which motion was filed on May 14, 1900. On May 17th following, the record shows that the motion was sustained in part and overruled in part, and that thereupon, on the same date, the appellee filed her amended complaint. So far as the record shows, no motion to make the amended complaint more specific was ever filed, and therefore the motion that is in the record does not present any question for decision. On the 21st of May, 1900, the appellant addressed a demurrer to the amended complaint upon two grounds: (1) That there was a defect of parties defendant, in that the Citizens' Light Company of Vincennes was a necessary party, and should have been joined; (2) that “the complaint does not state facts sufficient to constitute a good cause of action.” This demurrer was overruled. There is no merit in the first ground of demurrer, for there is no showing of any character that the Citizens' Light Company of Vincennes was a necessary party. It is urged on behalf of counsel for appellee that the second ground of demurrer is not well taken, and does not present any question for review, because it is not in harmony with the provision of the statute. They urge that the averment that “the complaint does not state facts sufficient to constitute a good cause of action” is not equivalent to the averment that it “does not state sufficient facts to constitute a cause of action.” Technically, so far as the demurrer itself is concerned, it does not show upon its face that it was addressed to the amended complaint, but, as it was filed subsequently to the filing of the amended complaint, we think it is sufficient.The objection urged to the form of the demurrer is highly technical, and not well taken. If a demurrer uses language equivalent to that of the statute, it is sufficient. Leach v. Adams, 21 Ind. App. 547, 52 N. E. 813;Ross v. Menefee, 125 Ind. 432, 25 N. E. 545. Here the demurrer is within the rule stated. The exact language of the statute is employed, and the word “good,” as used, will not destroy the force of the pleading, but will be treated as surplusage.

Under the averments of the complaint, it cannot be said that the stone described was in or upon the sidewalk, and hence in that sense was not an obstruction. The words “along” and “edge,” referring to the sidewalk, are relative terms, and do not with any definiteness describe the location of the stone. The words used, and the connection in which they are used, will not bear the construction that they convey the thought that the stone was in or upon the sidewalk. Of this we are clear. If the complaint is sufficient to withstand the demurrer, it must be upon the ground that the stone was such a dangerous obstruction and in such close proximity to the sidewalk that it was the duty of the city, in the exercise of reasonable care, and for the protection of travelers, to erect a suitable barrier, and maintain a light at night, so that its dangers might be avoided. Negligence cannot be imputed to a city for a failure to light its streets, for that is a governmental function, and for such failure it is not liable. City of Vincennes v. Thuis, Adm'r, 28 Ind. App. 523, 63 N. E. 315, and authorities there cited.

Cities are not insurers of the safety of their streets and alleys. They have performed the full measure of their duty in this regard when they have made them reasonably safe, and kept them in a reasonably safe condition, for persons traveling in the usual modes by day and by night, and while such travelers are exercising ordinary care. Elliott, Roads & Streets, § 615; City of Indianapolis v. Cook, 99 Ind. 10;Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452, 9 Am. St. Rep. 827;Gosport v. Evans, 112 Ind. 133, 13 N. E. 256, 2 Am. St. Rep. 164. This duty extends not only to the traveled way of streets and alleys, but to adjacent conditions. Ordinarily fences or barriers are not required along highways to prevent travelers from straying out of their limits, but, if there are excavations or other dangerous defects or obstructions close to the way, the city or local authorities are required to erect barriers or take other proper precautions to warn travelers of the danger. Elliott, Roads & Streets, § 618; Woods v. Groton, 111 Mass. 357;Halpin v. City of Kansas, 76 Mo. 335;City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98;City of Portland v. Taylor, 125 Ind. 522, 25 N. E. 459;Higgins v. City of Boston, 148 Mass. 484, 20 N. E. 105.

Another rule which seems to be well fortified by the authorities is that, wherever railings or barriers are necessary for the safety of travelers, it is negligence in the municipality, in failing to construct and maintain them. Elliott, Roads & Streets, § 618; Orme v. Richmond, 79 Va. 86;Olson v. Chippewa Falls, 71 Wis. 558, 37 N. W. 575;Borough of Pittston v. Hart, 89 Pa. 389.

The rules above stated are applicable whether the city caused the obstruction, or whether it was caused by a third person, provided it had notice, either actual or constructive. It is as much the duty of a municipality to cause the removal of an obstruction to the public highway, or to guard against it, where it has been placed there by a third person, as it is if placed there by itself. If the obstruction is at the margin of the traveled way, it must not be such as to be either a trap or a snare. Arey v. City of Newton, 148 Mass. 598, 20 N. E. 327, 12...