Knouff v. City of Logansport

• Decision Date: 31 January 1901
• Docket Number: 3,338
• Parties: KNOUFF v. CITY OF LOGANSPORT
• Court: Indiana Appellate Court

59 N.E. 347

26 Ind.App. 202

KNOUFF v. CITY OF LOGANSPORT

No. 3,338

Court of Appeals of Indiana

January 31, 1901

From the Cass Circuit Court.

Reversed.

C. E Hale, G. A. Gamble, J. C. Nelson and Q. A. Myers, for appellant.

F. M Kistler, S. T. McConnell and A. G. Jenkines, for appellee.

OPINION

ROBINSON, J.

Third street in the city of Logansport terminates at Eel River and connects with the south entrance of a bridge having a walk on each side, the stone abutment supporting the bridge is ten to fourteen feet high from the bed of the river to the surface of the street and extends twelve feet east of the east line of the bridge, the street connected with the bridge at an angle of about forty-five degrees and the west side of the paved portion of the street at its northern terminus extended eastward five or six feet beyond the east line of the bridge ending abruptly on the south bank of the river and abutment which left an open and exposed space in the street from five to six feet wide that did not lead directly into the entrance of the bridge but led to the east thereof and directly across the abutment into the river; that the city had for a long time known of this condition but had provided no guard-rail or warning. The complaint states a cause of action unless the following averment makes it defective: "That on the 4th day of July, 1899, while this plaintiff was walking along said street and on that part used by persons on the east side thereof, going north for the purpose of crossing the river on the east sidewalk of said bridge, and just as he was about to enter the bridge, he suddenly and unexpectedly was confronted with a person riding a bicycle on the east sidewalk of the bridge, coming directly toward him at great speed from the north, and the plaintiff for the purpose of avoiding a collision and injury, jumped suddenly to his right, and because of the failure of the city to maintain guards at that part of the street where it ends at the abutment, he fell suddenly off of the end of the street at the place herein described" producing injuries described.

The complaint does not show contributory negligence, and we set out so much only of the pleading as presents the real question in controversy.

A bicycle is a vehicle and has no lawful right to the use of the sidewalk. Mercer v. Corbin, 117 Ind. 450, 3 L. R. A. 221, 10 Am. St. 76, 20 N.E. 132; Holland v. Bartch, 120 Ind. 46, 16 Am. St. 307, 22 N.E. 83; § 4398 Burns 1894; City of Indianapolis v. Higgins, 141 Ind. 1, 40 N.E. 671.

It is argued that the bicycle rider while engaged in an unlawful act set in motion or created a condition that ultimately resulted in appellant's injury, and that the rational conclusion is that the bicycle rider was the proximate cause of the injury. Counsel for appellee cite the cases of New York, etc., R. Co. v. Perriguey, 138 Ind. 414, 34 N.E. 233, 37 N.E. 976, and Alexander v. Town of New Castle, 115 Ind. 51, 17 N.E. 200 as decisive.

In the briefs for appellant and for appellee is quoted the following from Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 5 L.Ed. 257: "It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may seem to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

In New York, etc., R. Co. v. Perriguey, supra, the opinion rests upon the proposition that the engineer was furnished with two sufficient hand lamps as a substitute for the regular headlight and that it was his duty to light the headlight whether it was the regulation light or the substitute lamps; this he failed to do, and it was held that the proximate cause of the injury was the engineer's negligence in failing to light the hand lamps. It clearly appeared from the findings that the company had done its duty by furnishing proper lamps, and that the engineer failed in his duty to light them, thus clearly showing that the proximate cause of the injury was the negligence of a co-employe. "In the present case," said the court, "the defect in the lamp of the headlight was a condition; the cause of the collision was the absence of light. The absence of that light was not the defect, but was the failure of Ferris to light the hand lamps and place them in the headlight from which the presence of his engine could have been seen for the distance of five miles and the collision averted." See Lake Shore, etc., R. Co. v. Wilson, 11 Ind.App. 488, 38 N.E. 343.

In Alexander v. Town of New Castle supra, an officer was conducting a prisoner to jail and as they passed an excavation in the side of the street the prisoner seized the officer "and threw him into the pit or excavation, whereby he was injured." The town was held not liable for the very good reason that the prisoner "was clearly an intervening, as well as an independent human agency in the infliction of the injuries of which the plaintiff complained." We fail to see how this case can be controlling...