Corporation of Bluffton v. Mathews

• Decision Date: 19 December 1883
• Docket Number: 10,354
• Citation: 92 Ind. 213
• Parties: The Corporation of Bluffton v. Mathews
• Court: Indiana Supreme Court

92 Ind. 213

The Corporation of Bluffton v. Mathews

No. 10,354

Supreme Court of Indiana

December 19, 1883

From the Wells Circuit Court.

The judgment is reversed, at the appellee's costs, and the cause is remanded with instructions to sustain to the complaint the demurrer to the second paragraph of the answer.

J. S Daily and L. Mock, for appellant.

J. T France and --- French, for appellee.

OPINION

Black C.

The appellee Matilda J. Mathews brought her action against the appellant and one Morgan. The complaint alleged that said Morgan, on the 24th day of October, 1881, was engaged in the erection of a certain brick building on lot numbered fifty-two in the town of Bluffton, as known and designated on the recorded plat of said town of Bluffton, in Wells county Indiana, and fronting on East Market street, one of the public streets and thoroughfares of said town; that said Morgan had full possession of said lot under a contract for the building of said brick building for Lent Williamson and George A. Williamson; that in the erection of said building said Morgan caused an excavation to be made for a cellar under said building, of the full size of said lot on said street, and caused two certain excavations to be made in the sidewalk adjoining said lot, and on said public street and thoroughfare, and of the depth of about six feet, and each of the length of ten feet running parallel with said cellar and sidewalk, and of the width of six feet, extending very nearly across said sidewalk from said cellar and opening into said cellar; that said incorporated town of Bluffton and said Morgan suffered and permitted said two excavations in said sidewalk to be made, and negligently, wrongfully and unjustly suffered and permitted the same to remain open, and the passage of said sidewalk to be obstructed and rendered dangerous to persons passing along said sidewalk along said lot, for a long and unreasonable length of time, to wit, for the space of about five weeks; that said sidewalk was constantly frequented and used by persons passing to and fro by said lot; that "the said defendant" negligently, wrongfully and unjustly left the said excavations in said sidewalk along said lot uncovered and unprotected, and without any barriers or guards to prevent persons passing along said sidewalk and lot from falling into said excavations in said sidewalk; that on the 24th of October, 1881, the said defendants negligently left, suffered and permitted said excavations in said sidewalk along said lot to be uncovered, and without any guards or barriers...