Cumberland Telephone & Telegraph Company v. Pierson
| Decision Date | 11 June 1908 |
| Docket Number | 21,104 |
| Citation | 84 N.E. 1088,170 Ind. 543 |
| Court | Indiana Supreme Court |
| Parties | Cumberland Telephone & Telegraph Company v. Pierson |
From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.
Action by Harry D. Pierson against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals.
Reversed.
Elbert M. Swan, William C. Mason and James T. Walker, for appellant.
J. W Burns, C. L. Wedding and DeBruler, Welman & DeBruler, for appellee.
Appellee recovered a judgment against appellant in the court below for $ 7,000 on account of a personal injury sustained by reason of appellant's alleged negligence. Appellant's demurrer to the complaint, on the ground of insufficient facts, was overruled, and that ruling constitutes the first alleged error.
That part of the complaint necessary to a consideration of the question presented reads as follows: "That Walnut street, in the town of Dale, is one of the principal thoroughfares of said town, and is a public street; that on the date before mentioned, from said Walnut street, and crossing the same, the company had a wire drawn from east to west, the wire being fastened on the east side of the street to a pole, as described, and on the west side of the street to a dwelling; that on said date said wire drawn across said street was slacked, by being broken loose from its fastenings to said residence, to which it was fastened after crossing the said street; that by being broken loose from said residence it was so slackened that it was suspended a distance of about eight feet from the ground, or center of said street; that when the wire was so placed across said street it was not high enough above said street to permit the regular travel upon said street and under said wire; that it was the duty of said defendant, by virtue of an ordinance of the town of Dale, found on page 79 of the ordinance book of said town, to have its poles and wires so placed and maintained as not to interfere with the travel of said highways; that on said day this plaintiff was driving along and upon said street, on a load of baled hay, and without seeing or knowing the condition of said wire, as aforesaid, he drove against and was caught by said wire, and thrown from his wagon without any fault, carelessness or negligence of his; that said wire had been in said condition for a number of days or weeks prior to said accident, and said company well knew of its condition, and suffered the same to remain, as before stated, up to the time of said accident."
This complaint is palpably defective. It will be noted, first, that no act or omission of appellant's is characterized as careless or negligent, but the culpable quality of its acts is left to inference. The principle has been frequently declared and applied by this court that, in common-law actions founded upon negligence, the negligence relied upon must be charged in general terms, or facts must be averred sufficient to compel the inference of such negligence as will constitute the proximate cause of the injuries sustained. Pittsburgh, etc., R. Co. v. Schepman (1908), 171 Ind. 71, 84 N.E. 988; Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 299, 75 N.E. 277; Pennsylvania Co. v. Marion (1885), 104 Ind. 239, 3 N.E. 874, and cases cited.
It appears from the complaint that appellant's telephone wires were maintained along and upon the streets of the incorporated town of Dale, and, inferentially, with the permission of the corporate authorities, and it is further made manifest that the terms upon which such franchise was to be exercised were to some extent prescribed by ordinance. In this connection it is alleged "that it was the duty of said defendant, by virtue of an ordinance of the town of Dale, found on page 79 of the ordinance book of said town, to have its poles and wires so placed and maintained as not to interfere with the travel of said highways." This averment embodies merely the pleader's conclusion as to the substance and effect of the ordinance, and is not the averment of a fact. Wabash R. Co. v. Hassett (1908), ante, 370, and cases cited.
A complaint for a tortious injury, predicated to any extent upon a breach of the provisions of a municipal ordinance, should allege that the ordinance was duly enacted and is still in force, and should set out at least its substance. Lake Erie, etc., R. Co. v. Hancock (1896), 15 Ind.App. 104, 43 N.E. 659; Lake Erie, etc., R. Co. v. Mikesell (1899), 23 Ind.App. 395, 55 N.E. 488; Southern R. Co. v. Jones (1904), 33 Ind.App. 333, 71 N.E. 275.
It is apparent that the terms of the ordinance to which reference is made were likely to become material to a full consideration of this case, and it was manifestly the purpose of the pleader to...
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