Gardner v. City of Covington

• Decision Date: 27 May 1927
• Docket Number: No. 12945.,12945.
• Citation: 156 N.E. 830,86 Ind.App. 229
• Court: Indiana Appellate Court
• Parties: GARDNER v. CITY OF COVINGTON.

86 Ind.App. 229

156 N.E. 830

GARDNER

v.CITY OF COVINGTON.

No. 12945.

Appellate Court of Indiana, in Banc.

May 27, 1927.

Appeal from Fountain Circuit Court.

Action by Myron E. Gardner against the City of Covington. Judgment for defendant, and plaintiff appeals. Affirmed.W. N. White, of Covington, and E. F. McCabe, of Williamsport, for appellant.

Nebeker & Dice, of Covington, for appellee.

McMAHAN, C. J.

Action by appellant for damages caused by the alleged negligence of appellee in failing to keep a public street therein in repair. Appellee answered in two paragraphs, the first of which was later withdrawn. A demurrer to the second was overruled. Appellant excepted, and, refusing to plead further, judgment was rendered that he take nothing; hence this appeal.

The complaint alleged that in the latter part of April or the first part of May, 1924, a washout occurred in the traveled portion of a certain street in said city; that the city had knowledge thereof for several days, but neglected to repair or guard the same.

The answer to which the demurrer was addressed and overruled, after stating facts showing that the street where appellant had been injured was in the city and had been opened and laid out by the city and connected a named street in the city with a public highway south of the city, alleged that it had been improved at the joint expense of the city and of the county, and that where it crossed a named railroad an overhead bridge had been constructed at the joint expense of the city, the county, and the railroad; that thereafter said newly opened street and the highway with which it connected was in a proceeding before the board of commissioners improved under the three-mile gravel road law, the costs thereof being paid by general taxation of the property within the township and city where the improvement was located; that thereafter, and long before the accident mentioned in the complaint, the commissioners of the county took over said improved highway, including the part in the city where the accident happened, for the purpose of maintenance, and thereafter maintained the same as a part of the free gravel roads of the county, paying for such maintenance out of the gravel road fund, and so maintained said street to the exclusion of the city until a date long prior to the happening of the accident, when the state of Indiana, by and through the state highway commission, marked, laid off, designated, and approved the same as a main market highway, and took over the same to the complete exclusion of appellee, and took complete charge, control, and jurisdiction and maintenance thereof to the exclusion of appellee; that appellee is a city of less than 2,500 inhabitants as shown by the last preceding United States census; that the part of the street in question is not in the platted part of the city, but is in a place where the houses are more than 500 feet apart; that ever since the state took over control and maintenance of said street appellee has had and exercised no authority or jurisdiction over the same and has had no control of the maintenance thereof, but that the state has asserted and exercised all control, management, and maintenance thereof to the exclusion of appellee, said street being a part of state highway No. 33, where the same passes through appellee city.

Section 53 of the Municipal Code (Acts 1905, pp. 246, 250; Burns' 1926, § 10284, cl. 31) gives cities authority to enact ordinances for the purpose, among other things, for the appointment of a street commissioner or other necessary officer to keep all streets and alleys clean and free from obstructions to public travel. Section 94 of the same act (section 10341, Burns' 1926), in so far as here material, is as follows:

“It shall be the duty of the board of public works to have general supervision over the streets, alleys, sewers, public grounds and other property of the city, unless otherwise provided in this act, and to keep the same in repair and good condition, and to provide for the cleaning of such streets and alleys. The cost of such care and repairs and of the cleaning and sweeping of such streets shall be paid out of the general fund.”

And section 267 of the act (section 11186, Burns' 1926) provides, among other things:

That “every city and town, except when otherwise provided by law, shall have exclusive power over the streets, alleys, *** and public grounds within such city or town, and may *** lay out, survey, extend and open streets *** and make repairs therein and thereto.”

Section 11188, Burns' 1926 (section 269 of the Acts of 1905) provides:

That “every city and town shall have exclusive power, by ordinance, to control and care for its streets, alleys and other public places, and to prevent the obstruction or incumbrance of any such street, alley or other public place, so as to impede the free use of the same for its proper purposes.”

The Legislature in 1917 (Acts 1917, p. 253) created the state highway commission and provided for the construction, reconstruction, maintenance, repair of and control of public highways by that commission. Section 9 provided for the designation by the commission of the “main roads” of the state as “main market highways.” Sections 10 and 11 provided a plan by which the board of commissioners of any county could apply to the state highway commission for aid in constructing or reconstructing any road of the county which the county commissioners might decide should be designated as “main market highways.” Section 14 provided:

“If any highway to be constructed or reconstructed connects at the corporate limits of any city or town with an unimproved street of such city or town, the state highway commission may, in their discretion, improve the same as a part of such highway.”

And after providing that the cost of such improvement should be paid for jointly by the city or town, the county, and the state, it provided...