Commissioners of Shelby Cnty. v. Blair

• Decision Date: 09 January 1894
• Citation: 8 Ind.App. 574,36 N.E. 216
• Parties: COMMISSIONERS OF SHELBY COUNTY v. BLAIR.
• Court: Indiana Appellate Court

8 Ind.App. 574

36 N.E. 216

COMMISSIONERS OF SHELBY COUNTY

v.BLAIR.

Appellate Court of Indiana.

Jan. 9, 1894.

Appeal from circuit court, Decatur county; J. W. Study, Judge.

Action by Alonzo Blair, administrator of Laura Beynon, deceased, against the commissioners of Shelby county. Judgment for plaintiff. Defendant appeals. Affirmed.

O. J. Glessner, D. L. Wilson, B. K. Elliott, and W. F. Elliott, for appellant. Adams & Carter, for appellee.

ROSS, J.

The appellee, Alonzo Blair, as administrator of the estate of Laura Beynon, deceased, instituted this action against the appellant in the Shelby circuit court to recover damages for the death of said Laura Beynon, alleged to have been caused by the negligence of the appellant in improperly constructing and in failing to keep in repair a bridge across a mill race in Shelby county. The venue of the cause was changed to the Decatur circuit court. The complaint is in two paragraphs, to each of which a demurrer was filed by appellant, and overruled by the court. The correctness of these rulings are the first questions presented on this appeal. The first paragraph, omitting the caption, is as follows: “In the above-entitled cause, the plaintiff complains of the defendant, and says: That on, to wit, the 27th day of May, 1891, he was appointed by the Shelby circuit court administrator of the estate of Laura Beynon, deceased. That he qualified, gave bond, entered upon the discharge of his duties as such administrator, and is now the legally qualified and acting administrator of said estate. That said Laura Beynon died intestate in said county on, to wit, the 23d day of March, 1891, leaving surviving her three children, whose names and ages are, respectively, Lewis Beynon, aged 11 years; Maggie Beynon, aged 8 years; and Alvin Beynon, aged 1 year,-and also her husband, William Beynon. And that said children and husband are her next of kin and sole heirs at law. That said decedent was, at her death, 30 years old. And the plaintiff further says: That the defendant negligently and improperly constructed and caused to be constructed a county bridge on, in, and across the public county highway in said county, leading from the city of Shelbyville, in said county, to Boggstown, in the same county, and that said bridge was not within the corporate limits of any town or city. That said bridge was negligently and improperly constructed, in that, to wit, said bridge was not constructed of sufficient width to make it safe for persons to pass over it in vehicles drawn by horses, in case said horses should shy or become frightened from any cause. That said bridge was constructed without any side rails or protections at the sides thereof to prevent horses from running off of said bridge at the sides of the same, or to prevent their backing off or running off of said bridge the vehicles to which they were attached, while passing on and over said bridge. That the boards in the floor of said bridge were loose and movable, and made much noise and motion when either ridden or driven over, and were not of sufficient thickness to make a good and sufficient roadway. That the boards in said floor were so laid as to make cracks and holes, through which horses, when crossing said bridge, could see running water beneath. That the defendant permitted said bridge to remain as so constructed up to and including the time hereinafter named, at which it is alleged said Laura Beynon was injured, with this exception: That the defendant suffered and permitted said bridge, and the floor thereof, to rot and fall in decay, and the cracks and holes on the floor of the same to become greatly enlarged, and so remain for a long time, to wit, five years, before the time at which said Laura Beynon was so injured. That said bridge was of the length of, to wit, thirty feet; of the height of, to wit, fifteen feet, from the ground below; and of the width of only ten feet,-and was situated and located over and across a mill race, through which a large quantity of water flowed rapidly, making much noise. That the defendant has accepted and maintained said bridge, so constructed, and has used it as a county bridge in, across, and forming a part of said highway, over which the public did travel for more than fifteen years immediately preceding the time when said decedent was injured. That there is now, and has been for twenty years last past, much travel over said highway; and at the time said decedent was so injured there was no way persons lawfully traveling on said highway could cross said mill race, except by going on and over said bridge. That at said time there was a county bridge constructed and maintained by the defendant across Brandywine creek, at a point a little southeast of the bridge across said race, and at a distance of, to wit, seventy-five feet from it; and said bridge across said Brandywine creek was and is a part of said public highway leading from Shelbyville, Ind., to Boggstown, Ind. That both of said bridges were constructed at points where the defendant had a right to, and it was its duty to, construct them. That the floor of said bridge, at the time of said injury, was ten feet above the floor of the bridge across said race. That the said highway extending from the bridge across said race to said Brandywine bridge ran over an approach to said bridge, which approach was also the approach to said race bridge; was constructed by the defendant; was steep and sharply curved, so that, in passing over said highway from said Brandywine bridge to said race bridge, there was a tendency, by reason of the steep grade and sharp curve, for vehicles to which horses were attached to run on the horses, and to run them and the vehicle off of said race bridge, at the left-hand side, all of which would have been avoided, had such approach and said bridge been properly constructed and maintained. That such approach was constructed by the defendant; was a part of said public county highway, and had been such for more than five years immediately preceding the time of said injury. That on the 27th day of July, 1888, said bridge and approach were in the condition herein described; and the defendant then knew, and had known for all of five years immediately preceding, that they were in such condition. That on said day decedent was in a wagon with, to wit, twenty children, from the age of five to ten years, and was being carefully driven over said public highway and down said grade from said Brandywine bridge on her way home, and while being there driven the horses attached to said wagon became frightened by the wagon running on them in going down said grade, and at the movement and noise of the boards in the floor of the bridge across said race, and at the sight and sound of the water underneath said bridge, and at other things, unknown to the plaintiff, and ran off of the said bridge at the left-hand side, and ran the wagon off of said bridge at said side; and without any fault or negligence of said decedent, or of any of her next of kin, or of any one who was in said wagon with her, she was thrown out of said wagon, and from said bridge, into the water below, and onto some large, rough timbers with sharp corners, which the defendant had placed and permitted to be placed and remain at the side of said bridge, and was seriously and fatally injured in her abdomen, back, spine, and lower parts of her body, both internally and externally, from which injuries she languished and suffered until the 23d day of March, 1891, when she died. That her death was due to the injuries she received on said 27th day of July. That she did not know it was dangerous for her so to travel over said highway on said day. That the defendant invited her to travel over said highway on said day, and that there was no other way by which she could pass to her said home. That said highway leading from said city of Shelbyville to said town of Boggstown was and had been a public highway for more than fifty years before said 27th day of July, and that on said day the public generally were using and traveling over said highway, and down said approach, and on and across said race bridge. That the death of said decedent was caused by the negligence and wrong of the defendant, as herein set out, and not by the negligence or fault or wrong of any one else. That by said negligence and wrong the said children have lost their mother, and a mother's support, care, and love, and said husband has lost the service, companionship, and support of a faithful and loving wife, who at the time of her death was thirty years old, and prior to her injuries had been strong, healthy, and free from disease and pain, and they have thereby been damaged in a great sum, of $10,000. Wherefore, the plaintiff asks judgment for $10,000, costs, and all other proper relief.” The second paragraph is, in substance, the same as the first, except that, instead of alleging that the county constructed the bridge, it is alleged that the county accepted and adopted the bridge, and for more than 15 years past had continued “to accept and maintain said bridge” as a part of a public highway.

Inasmuch as counties are involuntary corporations, being mere local subdivisions of the state, and created by the sovereign power of the state, they are not liable for the negligence of their servants or agents, unless made so by statute. Union Tp. v. Berryman, 3 Ind. App. 344, 28 N. E. 774;Board v. Boswell, 4 Ind. App. 133, 30 N. E. 534;Vigo Tp. v. Board of Com'rs of Knox Co., 111 Ind. 170, 12 N. E. 305;Abbett v. Board, 114 Ind. 61, 16 N. E. 127;Board v. Chipps, 131 Ind. 56, 29 N. E. 1066;Smith v. Board, 131 Ind. 116, 30 N. E. 949;Morris v. Board, 131 Ind. 285, 31 N. E. 77;Board v. Daily, 132 Ind. 73, 31 N. E. 531. And, in the absence of an express statute imposing a duty to keep its bridges in repair, a county is not liable for failure to do so. Elliott, Roads & S. p. 42; Board v. Chipps, supra....