Gaston v. Bailey
| Decision Date | 11 March 1896 |
| Docket Number | 1,770 |
| Citation | 43 N.E. 254,14 Ind.App. 581 |
| Parties | GASTON v. BAILEY |
| Court | Indiana Appellate Court |
From the Marion Superior Court.
The judgment is reversed, with instructions to grant appellee a new trial if asked for within ninety days, otherwise that the court render judgment on the verdict in favor of the appellant.
J. B Sherwood, for appellant.
Lamb Hill & Dye, for appellee.
This action was brought by the appellee against the appellant, to recover damages for injuries to her person, received by falling into a coal-hole in the sidewalk in front of appellant's property on Delaware street in the city of Indianapolis.
Upon a trial of the cause, the jury returned a special verdict as follows: "That said plaintiff, Maud Bailey, on or about the 27th day of November, 1893, while passing along the west sidewalk of Delaware street, in the city of Indianapolis, Marion county, Indiana, exercising due and proper care, stepped upon the cover of a coal-hole lying east of the Halcyon block and within the limits of the sidewalk between the property line and the curb on the said west side of Delaware street, and when she stepped upon the cover over said coal-hole with her left foot, said cover slipped off from said coal-hole and let the plaintiff's left foot and leg into said coal-hole, the whole length of her leg, and the cover over said coal-hole turned upon its edge in the hole, and when plaintiff fell, she struck her left side upon the edge of the cover so turned up, and received thereby a severe bruise on her left side, and also received a bruise in her groin and an abrasion of skin between her left knee and ankle, and by said fall she was severely injured; that said Halcyon block, and the coal vault under the sidewalk in connection with the same, and the cover of the coal-hole into which the plaintiff fell, were at that time the property of the said defendant, John M. Gaston; and that said cover slipped from said coal-hole and turned upon its edge, as above described, when stepped upon by said plaintiff; that said cover was not securely fastened upon said coal-hole, but, by the defendant, had been permitted to remain on said coal-hole without being so securely fastened thereon as to avoid its slipping and turning, as above described.
The appellant, under the second, third and fourth specifications of error assigned, insists that the facts found are insufficient to sustain a judgment for appellee.
It is well settled in this State that the owner of a lot abutting on a street is also the owner of the fee and entitled to the use of such street to the center thereof, subject to the right of the public to use the same as a street. Haslett v. New Albany, etc., R. R. Co., 7 Ind.App. 603, 34 N.E. 845, and cases cited. This right of the landowner to use that part of the lot occupied by the street, is subject to the easement of the public, and he has no right to make any use of it that will interfere with the safe use thereof by the general public. The city is bound to keep its streets and sidewalks in a reasonably safe condition for travel (Trout v. City of Elkhart, 12 Ind.App. 343, 39 N.E. 1048), and the property owner has no right to make said street or sidewalk unsafe for use by the public. When he assumes to make use of his property in conjunction with the public's right to use it also, he must keep and leave it in such condition as to be reasonably safe for travel. If he is negligent and makes pitfalls or places obstructions therein, and travelers using the street and exercising due care are injured by reason of such obstructions or pitfalls, he must answer therefor in damages. The easement of the public is paramount to the land-owner's right to use that part of his lot covered by the street and his right to use it is subservient to the public's right to pass over it.
In a number of States it has been held that the abutting lot-owner has no ownership in or to the fee of the street; and following those holdings, it has been held that anything done by the lot-owner to the street which in any way detracted from its safety, was a nuisance, and any damage arising therefrom would entitle the injured party to exact damages from him, and that it was no defense that he had exercised the utmost care and made the street reasonably safe. The basis of such holdings rests upon the fact that the lot-owner had no right to use the street except as the general public used it, and that if he did make use of it in a way different from the manner intended as a public highway, he created a nuisance and was liable for the consequences. Of course, if the lot-owner has no right to...
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