Gribben v. City of Franklin

• Decision Date: 21 April 1911
• Docket Number: No. 21,441.,21,441.
• Citation: 94 N.E. 757,175 Ind. 500
• Parties: GRIBBEN v. CITY OF FRANKLIN.
• Court: Indiana Supreme Court

175 Ind. 500

94 N.E. 757

GRIBBEN

v.CITY OF FRANKLIN.

No. 21,441.

Supreme Court of Indiana.

April 21, 1911.

Appeal from Circuit Court, Johnson County; Isaac Carter, Judge.

Action by Elbert Gribben against the City of Franklin. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

L. Ert Slack, for appellant. Elba L. Branigin, for appellee.

MYERS, C. J.

This is an action by appellant against appellee for damages on account of an injury received on account of an alleged defective sidewalk in the city of Franklin.

Error is assigned upon the ruling of the court sustaining a demurrer to the complaint. The gravamen of the complaint is that appellant was injured by falling and breaking his leg upon a dangerous sidewalk on the 31st day of July, 1907, producing a compound fracture; that at the time of the injury one of the common councilmen of the appellee city knew of the condition of the sidewalk where appellant was injured, and knew of the accident, the nature of the injury, and the place where it occurred, while such councilman, within 10 days after the accident; that on the 23d day of October, 1907, 84 days after the injury, appellant served the mayor of the city “written notice of the time, place, cause and nature of the injury to plaintiff alleged to have occurred herein, and the conditions herein set forth as existing at the date of the accident did exist at the date of said written notice and for a period of five months thereafter”; that about December, 1907, and continuously thereafter up to the time of filing the complaint,June, 6, 1908, the broken and splintered bones produced a pressure upon the nerves of the leg and an inflammation, and great pain of body and mind, depriving him of the use of his leg, and produced a permanent injury.

From the briefs we gather that the demurrer was sustained on account of the failure to give the notice as required by the act of 1907, p. 249 (Burns 1908, § 8962). The title of the act and section 1 are as follows:

“An act concerning actions against cities and towns on account of injuries resulting from defective highways and bridges.

“Section 1. Be it enacted by the general assembly of the state of Indiana, That no action in damages for injuries to person or property resulting from any defect in the condition of any street, alley, highway or bridge, shall be maintained against any city or town of this state, unless written notice containing a brief general description of the time, place, cause, and nature of such injury, shall within sixty days thereafter, or if such defect consists of ice or snow, or both, within thirty days thereafter, be given to the clerk or mayor or member of the board of trustees of such city or town.”

[1] Appellant's contention is, first, that the act is void as to “streets and alleys,” because the title of the act only refers to “highways and bridges,” as being in violation of section 19, art. 4, of the state Constitution (Burns 1908, § 115). Upon this proposition it is to be observed that the term “highways” is a generic term, and includes streets, alleys, and other public ways, and as disclosed by the title and the body of the act, as referring to “highways” in cities and towns, the term is broad enough to include streets and alleys, for they are distinctive highways of cities and towns, as distinguished from rural highways. Strange v. Board (1910) 173 Ind. 640, 91 N. E. 242, and cases cited; Indianapolis v. Higgins (1894) 141 Ind. 1, 40 N. E. 671, and cases cited; Board v. Castetter (1893) 7 Ind. App. 309, 314, 33 N. E. 986, 34 N. E. 687; So. Kansas Ry. Co. v. Oklahoma City (1902) 12 Okl. 82, 69 Pac. 1050, 1054;Abbott v. City of Duluth (C. C. 1900) 104 Fed. 833, 837;State v. Cowan (1847) 29 N. C. 239, 248; Harding v. Inhabitants of Medway (1845) 10 Metc. (Mass.) 465; Jenkins v. C. & A. R. R. Co. (1887) 27 Mo. App. 578, 583;Parsons v. City and County of San Francisco (1863) 23 Cal. 462, 463; Elliott on Roads & Streets, §§ 1, 19, 453. So, while a street is a distinctive public highway, a public highway is not necessarily a street. Strange v. Board, supra; Island Coal Co. v. Greenwood (1898) 151 Ind. 476, 50 N. E. 36;Tucker v. Conrad, 103 Ind. 349, 2 N. E. 803; Common Council v. Croas, 7 Ind. 9; Elliott, Roads & Streets, §§ 7, 19. The term “street” in its ordinary acceptation includes sidewalks, unless it is associated with language restricting its meaning, as is not uncommon in provisions for improving streets, as distinguished from sidewalks, and vice versa. Dooley v. Town of Sullivan (1887) 112 Ind. 451, 14 N. E. 566, 2 Am. St. Rep. 209;City of Kokomo v. Mahan (1884) 100 Ind. 242;State v. Berdetta (1880) 73 Ind. 185, 38 Am. Rep. 117. The question was disposed of as to the act contravening section 19, art. 4, in City of Franklin v. Smith (1911) 93 N. E. 993. The title of the act therefore embraces streets and...