City of Warsaw v. Dunlap

• Decision Date: 27 April 1887
• Citation: 11 N.E. 623,112 Ind. 576
• Parties: City of Warsaw v. Dunlap.
• Court: Indiana Supreme Court

112 Ind. 576

11 N.E. 623

City of Warsaw

v.Dunlap.¹

Supreme Court of Indiana.

April 27, 1887.

Appeal from circuit court, Kosciusko county.

Haymond & Royse, for appellant. Frazer & Frazer, for appellee.

ELLIOTT, C. J.

The appellee was injured by a fall while walking along one of the streets of the city of Warsaw during the night-time, and his claim is that his fall was caused by a plank projecting across the sidewalk from the walls of a building in course of erection. The evidence shows that the accident occurred after dark on the night of the nineteenth of November, 1883, and that the plank was across the sidewalk on that night. It was shown that work on the building was discontinued on the tenth of November, 1883, and resumed on the nineteenth day of that month. It is also shown, by all the witnesses who testify on that subject, that a platform or runway was placed across the sidewalk on that day for the purpose of conveying bricks to the walls of the building, but all who testify on that subject assert that the planks were all removed from the sidewalk on quitting work late in the evening. There is no conflict of evidence upon this point that we can discover after a careful examination of the record. There is a distinction between a work undertaken by the municipal corporation itself and work undertaken by another, as there is between work dangerous in itself and work not necessarily dangerous. In this instance the work was not undertaken by the corporation, nor was it dangerous in itself. It is proper and lawful for a municipal corporation to permit its streets to be temporarily used for building purposes; and, in permitting the use of its streets for building purposes, the city of Warsaw was not guilty of any actionable wrong. It could only be guilty of a wrong by omitting to use reasonable care and diligence to keep its streets free from obsstructions. A municipal corporation is not an insurer of the safety of its streets, although it is bound to exercise reasonable care and diligence to keep them in a reasonably safe condition for use. 2 Dill. Mun. Corp. § 1019.

We think the evidence in this case fails to show that the city was guilty of any actionable negligence. The evidence, as we have seen, shows that the plank was removed from the sidewalk before night-fall, and the only fair inference is that it was placed across the sidewalk by some wrong-doer, and in such a case the city would not be liable. Doherty v. Waltham, 4 Gray, 596; Shear. & R. Neg. § 360. But, if this be conceded not to be the just inference, still the city cannot be held liable, because there is no evidence of actual notice; and the time elapsing between the hour that the workmen removed the planks and that at which the accident happened, was not sufficient to charge the city with notice. Where the obstruction which causes the injury is not placed in the street by the city itself, there must be actual notice, or the obstruction must have remained in the street such a length of time as to make it the duty of the corporate authorities to take notice of its existence. City v. Blood, 40 Ind. 62;City v. Wilter, 86 Ind. 414;...