Clark v. City of Huntington

• Decision Date: 12 May 1920
• Docket Number: No. 10302.,10302.
• Parties: CLARK et al. v. CITY OF HUNTINGTON et al.
• Court: Indiana Appellate Court

74 Ind.App. 437

127 N.E. 301

CLARK et al.

v.CITY OF HUNTINGTON et al.

No. 10302.

Appellate Court of Indiana, Division No. 2.

May 12, 1920.

Appeal from Circuit Court, Wabash County; Charles A. Cole, Special Judge.

Action by Mary L. Clark, administratrix, and others against the City of Huntington and others. From a judgment for defendants, plaintiffs appeal. Affirmed.W. A. Branyan, of Huntington, and Frank O. Switzer and Walter S. Bent, both of Wabash, for appellants.

Fred H. Bowers, Milo N. Feightner, Eben Lesh, U. S. Lesh, and Sumner Kenner, all of Huntington, for appellees.

NICHOLS, C. J.

This action was commenced in the Huntington circuit court, and the venue, on affidavit of appellant, was changed to the Wabash circuit court. The substance of the first paragraph of the complaint, which complaint is very long, covering 17 pages of the transcript, is as follows:

Appellee city of Huntington has a population of about 15,000, with the usual officers for such cities. Appellee Whitelock Press is a corporation, with its principal office located in said city, and appellees Hawley and Whitelock are business men located with their businesses in said city. Jefferson street is one of the principal streets of said city, and in 1915 was traveled more than any other street therein. It runs from the northwest to the southeast, crossing Little Wabash river at right angles a little south of, but near, the center of the city. At the place of crossing there is a small island in the center of the stream, called “the Island” which island is crossed by said street. There are two low truss bridges across said river and island. At the north end of the north bridge there is a stone abutment, from which a wall extends in an easterly direction along the north bank of said river, which wall is built with the west end thereof against the north abutment of said north bridge and is about 17 feet in height near the abutment, and 16 to 18 inches in width across the top. Said wall was constructed by appellees, other than the city, 8 years ago, at which time said appellees, other than the city, opened a right of way for foot travel, horses, wagons, buggies, and all sorts of motor vehicles from Jefferson street, at the north end of said bridge, running in an easterly direction along the north bank of said river and parallel with said wall, and continuing easterly until it intersected certain other driveways and alleys which run in a general north and south direction and passing what is known as the J. B. Bartlett Trucking Company plant, and also the Home Lumber Company plant, where said alleys are intersected by said driveway so opened, which driveway finds its outlet in another street in said city, known as State street, running east and west, which is also a great thoroughfare. Said Jefferson street is traveled day and night continuously by thousands of travelers. Said driveway and alley form a complete egress and ingress and are a continuous passageway from Jefferson street to State street. Such driveway is substantially on a level with the top of said wall. Said wall is perpendicular, with timber posts extending out of the top thereof in an upright position about 5 feet high and about 5 inches in diameter, and 6 or 8 feet apart, presumably for the purpose of attaching bars, wires, or other form of barricade thereto, to prevent travelers from falling over said wall into the river, or upon the rocks and ledges below. There are no bars, or any form of barricade, nor were any ever stretched from said posts, except temporarily, as hereinafter stated. Said wall and posts have been standing without barricades for more than 8 years, and appellees and each of them, including the said city, permitted said wall, posts, and driveway to remain as aforesaid for 8 years; negligently and indifferently. Appellees suffered the public to pass over said driveway, and also filled the uneven places, thereby making an approach to the same from Jefferson street. In order to make the driveway wider, they cut off about 2 feet of the side railing on the east side of the north end of said bridge, and at such point where appellant's decedent fell over the wall and met his death. Appellee city knowingly permitted such cutting and alteration of said bridge, so as to widen said driveway. Said city also participated in said opening of said driveway, by having its officials and street commissioner to superintend a part thereof, namely, the portion of the sidewalk on Jefferson street, where said approach from said street into said driveway was constructed, and said city also further recognized said driveway at other times, by placing a temporary barricade upon said posts in said wall, to prevent the populace from falling over the same, and by other acts aforesaid appellees invited the public to use said driveway as a part of the system of the streets and alleys of said city, and the public did use said driveway by its foot passengers and all sorts of conveyances for about 8 years. There was a contract between the appellees, other than the city, that they would build said wall and construct said driveway for their mutual use and for the use of the property owners, which agreement between said appellees was based upon a valuable consideration, and such wall was constructed, and such driveway was opened and prepared pursuant to said agreement, and has been so used for 8 years. Said driveway is about 20 feet in width, and intersects Jefferson street as aforesaid. The Whitelock Press conducts a printing office in a building fronting on Jefferson street, the ground of which is bounded on the south of said driveway so opened. All of said appellees at all times treated said driveway as open for the public by their use of it, and by permitting others to use it in a public way, and the ground over which said driveway runs and said wall is built is owned by appellees Whitelock Press, Orlando W. Whitelock, and Wesley W. Hawley. Said city is being operated, and was in November, 1915, operated, as a city of the fourth class, and for more than 25 years, through its officials and servants, it has had supervision over all the streets and alleys within its corporate limits, and since January 1, 1914, it has had a board of public works. It was at said last date bound to exercise due care over all its streets and alleys, and to keep and maintain them in a reasonably safe condition for the public to travel on and along, but that for 8 years it negligently suffered said wall adjoining Jefferson street, and the pit 17 feet in depth formed by the construction of said wall, and the opening of said driveway immediately adjacent to said Jefferson street aforesaid, to remain in the dangerous condition for foot travelers and those operating vehicles on and along said way. On the evening of the 12th of November, 1915, just after night had fallen, the decedent, Dora Clark, was coming from the J. B. Bartlett Trucking Company's plant, and was passing over the said driveway on foot toward the bridge, with the intention of entering upon said bridge, and when he got to the end of the bridge, believing he was up to it, turned to his left to enter upon the sidewalk upon the bridge immediately adjacent to it, went over the wall, fell 17 feet upon the ledges of the rock below, and was so injured that his death resulted within 5 days. At the time said decedent fell over the wall, and prior thereto, he was proceeding with due care, was in a place where he had a right to be, was without fault, was wholly free from negligence, and did not in any way contribute to his own injury; but because of the darkness, and on account of the absence of a barricade on said wall at the point where it united with said bridge, and on account of the side railing of said bridge being cut off as aforesaid, and on account of the negligent failure of the appellees to place barricades and railing along said wall, and on account of the negligent failure of the city to construct and maintain a proper barricade, decedent thereby lost his life. Had there been a suitable barricade on the wall, the decedent would not have fallen. Decedent, prior to his death and for a long time prior thereto, was in the employ of the J. B. Bartlett Trucking Company, of said city, which company was operating a general trucking and transfer business in said city, and was the owner of the lot fronting on said State street, upon which lots were sheds for trucks and horse stables. These buildings were on the ground west of said...