Dooley v. Town of Sullivan

• Decision Date: 02 December 1887
• Parties: Dooley v. Town of Sullivan.
• Court: Indiana Supreme Court

112 Ind. 451

14 N.E. 566

Dooley

v.Town of Sullivan.

Supreme Court of Indiana.

December 2, 1887.

Appeal from circuit court, Sullivan county; G. W. Buff, Judge.

Action by plaintiff, Dooley, to recover against the town of Sullivan for injuries caused by falling into an excavation in a sidewalk on one of the streets of said town. Judgment for defendant. Plaintiff appeals.

Chas. E. Barrett, W. C. Barrett, J. W. Shelton, and John S. Bays, for appellant. John T. Beasley and A. B. Williams, for appellee.

Elliott, J.

The complaint of the appellant alleges that the appellee caused the sidewalk on one of the public streets of the town to be torn up, and an excavation to be made therein; that the excavation was left unguarded; that there were no barriers or signal lights placed about it; and that the plaintiff, without any negligence on his part, fell into the excavation on the night of the twenty-second day of September, and was greatly injured. The second paragraph of the appellee's answer was, in substance, that Stephen A. White is the owner of a lot abutting on the street; that he was required by an ordinance passed by the board of trustees of the town to improve the sidewalk in front of his lot; that the only connection the town had with the improvement was to enact the ordinance, and notify White to proceed under it to make the improvement; that he proceeded in accordance with the ordinance and notice, that he tore up the sidewalk, and made the excavation into which the plaintiff fell; that, when the work was left on the night of September 22, 1885, White placed near it a good and sufficient danger signal, and “used all the care and diligence he possibly could do in the prosecution of the work, and in the placing of a danger mark, warning, and signal at the excavation; and that the plaintiff carelessly, recklessly, and wholly disregarding said signal, and without any fault on the part of White,” went into the excavation.

This answer is unquestionably good. It is good, because it shows that the plaintiff was guilty of contributory negligence; it is good, because it shows that White was not guilty of any negligence. In cases like this, only ordinary care is required of a municipal corporation, its agents and contractors; and ordinary care does not require that a watch be kept during the night over an excavation, unless there are circumstances peculiar to the particular case making it necessary. As a general rule, it is sufficient to show that proper signals or secure guards were placed about an excavation on quitting work; and neither the corporation nor its contractor is liable if a wrong-doer removes the signals during the night. Doherty v. Waltham, 4 Gray, 596; Shear. & R. Neg. § 360.

The difficult and controlling question arises on the ruling denying a new trial. The evidence shows that the work was done by the property owner, White, under an ordinance passed by the board of trustees, and that the corporate authorities had no notice of the excavation. If White is to be regarded as occupying the position of an independent contractor, then it is quite clear that, to fasten a liability on the town, it must be shown that the work was intrinsically dangerous, or that the town authorities had notice of the danger, or were negligent in not acquiring notice. Ryan v. Curran, 64 Ind. 345;Corporation of Bluffton v. Mathews, 92 Ind. 213;City v. Wilter, 86 Ind. 414;City v. Baker, 103 Ind. 41, 2 N. E. Rep. 236; 2 Dill. Mun. Corp. (3d Ed.) §§ 1025-1029. There is no evidence that the improvement was intrinsically dangerous; nor is there any evidence that the corporate authorities had notice, or were negligent in not acquiring notice. The case cannot, therefore, be maintained, unless the act of the property owner be deemed that of the town. On the one side, it is contended that the act was not that of the town, but of a person standing substantially in the position of an independent contractor, and that the town...