City of Warsaw v. Dunlap

• Citation: 14 N.E. 568,112 Ind. 579
• Decision Date: 10 December 1887
• Docket Number: 12,671
• Parties: The City of Warsaw v. Dunlap
• Court: Indiana Supreme Court

14 N.E. 568

112 Ind. 579

The City of Warsaw v. Dunlap

No. 12,671

Supreme Court of Indiana

December 10, 1887

Original Opinion of April 27, 1887, Reported at: 112 Ind 576.

OPINION

Elliott, J.

We have given the argument of the learned counsel on the petition for a rehearing careful study, and, impressed by their earnestness, have again examined the questions presented by the record.

Negligence is never presumed, and a plaintiff who alleges it as a cause of action must establish the breach of duty which constitutes the negligence or a recovery will be denied. Wabash, etc., R. W. Co. v. Locke, ante, p. 404; Toledo, etc., R. W. Co. v. Brannagan, 75 Ind. 490.

If the evidence in this case does not establish a breach of duty, the verdict is not supported, and but one conclusion is logically possible, and that is that the judgment be reversed. Again and again have judgments been reversed because the evidence did not sustain the verdict. Cincinnati, etc., R. W. Co. v. Long, ante, p. 166; Crossley v. O'Brien, 24 Ind. 325 (87 Am. Dec. 329); Pittsburgh, etc., R. W. Co. v. Morton, 61 Ind. 539, 581 (28 Am. R. 682); Riley v. Boyer, 76 Ind. 152; Roe v. Cronkhite, 55 Ind. 183. Failure on one material point will ensure a reversal of the judgment. Ray v. Dunn, 38 Ind. 230.

Whether a verdict is sustained by the evidence is determined by applying the law to the facts it proves, since it is obvious that, if the evidence does not bring the case within the governing legal principle, the verdict is without support.

The principle which rules this case forbids a recovery unless it affirmatively appears that the municipal corporation had notice of the unsafe condition of the sidewalk, or was chargeable with negligence in not acquiring knowledge. A broad distinction is made by all the authorities between cases where the municipal corporation itself makes a sidewalk unsafe, and cases where it is made unsafe by a wrong-doer. This case belongs to the latter class, and the municipal corporation is not liable unless it was guilty of negligence, and guilty of negligence it could not be, unless some officer or agent had actual notice of the unsafe condition of the sidewalk, or it had been so long unsafe that it was the duty of the municipal authorities to take notice of its condition.

Municipal corporations are not liable for the acts of persons it licenses to use its streets, unless the thing authorized is intrinsically dangerous, or the municipal authorities have notice of the negligence of its licensees. Ryan v. Curran, 64 Ind. 345 (31 Am. R. 123); Dooley v. Town of Sullivan, ante, p. 451.

No liability was incurred by licensing the builders to use the sidewalks, even if it be conceded that the builders were negligent, for, in order to make the municipality liable, evidence of the negligence of the builders must be supplemented by evidence that the city authorities were also negligent.

There is not a scintilla of evidence tending to show that any officer or agent of the city had actual notice of the obstruction of the sidewalk. If there is liability at all, it must be because the sidewalk had been so long unsafe that the municipal authorities were chargeable with notice. The question, therefore, is, does the evidence show that the city was guilty of negligence in not acquiring knowledge of the unsafe condition of the sidewalk? If the evidence fails to show that the city did not exercise ordinary care, then it fails to prove negligence, for the degree of care required of the city is ordinary care. If the evidence fails on this one essential point it defeats the case as certainly and effectually as if it failed on every point, since proof of this point is absolutely essential to a recovery.

It is shown by uncontradicted evidence that work on the building was discontinued on the 10th day of November, 1883, and recommenced on the 19th day of that month. It is also shown that planks were placed across the walk on the day last named for the purpose of a runway on which to wheel bricks. During the daytime, while in actual use, there can, of course, be no plausible pretence that there was negligence on the part of the city.

The only evidence that the plank over which the appellee fell was across the sidewalk on the night of the 19th is that it was there at about twenty minutes after six, as Miss Dodge testifies, and about six-thirty or seven o'clock, when the appellee fell over it.

The appellee's witness, Frederick Clark,...