Michigan City v. Werner

• Decision Date: 21 February 1917
• Docket Number: No. 22858.,22858.
• Citation: 114 N.E. 636,186 Ind. 149
• Parties: MICHIGAN CITY v. WERNER.
• Court: Indiana Supreme Court

186 Ind. 149

114 N.E. 636

MICHIGAN CITY

v.WERNER.

No. 22858.^*

Supreme Court of Indiana.

Dec. 19, 1916.

On Petition for Rehearing, Feb. 21, 1917.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by William F. Werner against the City of Michigan City. Judgment for plaintiff, and defendant appeals. Reversed, with instruction to sustain defendant's motion for a new trial.Theron F. Miller, of Michigan City, and Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellant. M. R. Sutherland and R. N. Smith, both of La Porte, and Forrest Smith, of Columbus, Ohio, for appellee.

LAIRY, C. J.

This is an appeal from a judgment in an action for damages occasioned by the negligence of appellant city.

The first question presented for consideration arose upon the action of the court in overruling the demurrer to the complaint. It appears from the complaint that appellant city maintained a bridge within its limits extending across the city harbor and connecting the north end of Franklin street with the public park, which lay along the shore of Lake Michigan. This bridge, which is of the jackknife type, was so constructed that it could be raised by electric machinery from a horizontal to a vertical position, the purpose of raising being to allow boats and other water craft to pass. The bridge was operated by an agent of the city named Heise. On the date of the injury to appellee, it is alleged that he entered upon the bridge for the purpose of crossing, and that when he was about one-third across the agent of the city set the machinery in motion, and started to raise the bridge; that appellee became excited and scared on account of the danger to which he was exposed, and, in an attempt to escape therefrom, ran across to the north end, which was raised five or six feet above the approach and jumped off the end of the bridge to the approach, thus receiving the injury of which he complains. It is alleged that Heise, the city's agent, was negligent in failing to guard the south approach to the bridge or to give notice or warning that he was about to raise the bridge, and that after appellee was on the bridge, Heise, having knowledge of his presence there, negligently raised the bridge, and created the dangerous condition which caused appellee to jump from the bridge and receive the injuries stated in the complaint. It is stated in the complaint that the bridge was under the complete control of the operator, and that it could be stopped and started, raised or lowered, at any time, and when in any position; and it is charged as an act of negligence that the operator saw appellee on the bridge at the time it was being raised, and saw that he was running to the opposite end to escape therefrom, and knew that by the time he could reach the end it would be raised to such a height as to make it dangerous for him to escape at that end. It is alleged that, knowing these facts, the operator negligently failed to stop the bridge and lower it, but negligently continued to raise it.

[1] The first objection urged against the sufficiency of the complaint is that it fails to allege that written notice, containing a brief description of the time, place, cause, and nature of the injury, was given to the city within 60 days thereafter, as required by section 8962, Burns 1914. This section applies to actions in damages for injury to person or property resulting from any defect in the condition of any bridge, street, alley, or highway. The injury to appellee as charged in the complaint did not result from any defective condition of the bridge, but it resulted directly from the negligence of the agent of the city in failing to use due care in the manner in which he operated the bridge. If ordinary care required that the south entrance to the bridge should have been guarded by stretching a rope or a chain across it before raising the bridge, the purpose of such barrier would not have been to guard a defective condition of the bridge, but to prevent people from entering upon it so as to be in a position to be injured in the operation of raising it. No case has been cited by counsel on either side bearing directly on the question here presented, but the language of the statute would seem to indicate that it was intended to apply only to a defective condition existing in bridges, streets, alleys, and highways. The court has no disposition to extend its application by construction.

[2] It is also claimed that the complaint is defective, in that it does not allege that appellee looked or listened for warnings of danger before going onto the bridge. Contributory negligence in personal injury cases is wholly a matter of defense under our statute, and it is unnecessary to allege freedom from it. Section 362, Burns 1914; Evansville & Terre Haute Ry. Co. v. Berndt, 172 Ind. 697, 88 N. E. 612, and cases cited. A complaint is sufficient as against an objection of this kind unless the facts stated in the complaint affirmatively disclose the defense of contributory negligence. Cole v. Scarfoss, 49 Ind. App. 334, 97 N. E. 345.

[3] Appellant further insists that the complaint does not show that the operator was acting as the agent of the city at the time he did the act complained of. Under this point it is urged that there is failure, in the first place, to show that the relation of principal and agent existed at the time of the injury, and in the second place that the complaint shows that the operator was engaged in a governmental function. Neither of these positions is well taken. The complaint alleges specifically:

“That at the time herein mentioned the said city exclusively operated and controlled the opening of and closing of said bridge, and employed and kept an operator, stationed at the south end of the bridge, whose duty it was to operate said bridge as aforesaid, and to warn and to keep off travelers from said bridge when it was about to be raised, and to protect the public from injury by reason of the operation of said bridge.” Also “that the said operator of said bridge saw and knew that this plaintiff was about to enter upon the bridge at the time, but, notwithstanding this fact, the said operator” failed in the performance of his duty.

The operator is in similar language referred to in other specific allegations of negligence. There can be no doubt that it was clearly stated that this operator was the same who had exclusive control of the bridge. And when he is referred to he is designated as such operator, clearly meaning the one previously mentioned as employed and kept by appellant city to operate the bridge.

[4] As to the capacity in which the operator was employed it is now well settled that persons so employed by cities in Indiana are agents of the city, discharging corporate duties, and that the city is liable for their acts of negligence performed in the discharge of such duties. The most recent case reviewing the authorities on this subject is that of City of Kokomo v. Loy, 112 N. E. 994.Under the authority of that case there can be no doubt of the capacity in which the operator of the bridge was performing his duty. He was clearly a corporate agent of the city, performing a corporate duty, and not a governmental one.

There was no error committed by the court in overruling the demurrer to the complaint.

Under the assignment of error in overruling the motion for a new trial, appellant claims that the evidence does not sustain the verdict for the reason that (1) the evidence shows conclusively that appellee was guilty of contributory negligence; (2) the evidence also shows that appellee was not going to the park owned and operated by the city, but that he was on his way fishing, and therefore the city owed no duty to him, except that owed to a trespasser; (3) there was no proof of notice as required by section 8962, Burns 1914; (4) the evidence shows only negligence of the operator of the bridge.

[5] The questions raised by points 3 and 4 have been disposed of by what we have said in regard to the demurrer to the complaint. As to the second proposition, it may be said that the purpose of the appellee in going over the bridge cannot affect his right to recover, so long as it appears that he was a member of the public in the proper use of a public bridge within the city limits. It is not at all material whether the city maintained a public park across the bridge or not. The bridge was admittedly a part of the public highway within the city, and as such open to the public for highway purposes. The negligence of the operator of the bridge was imputed to the city, and it became liable for the negligent acts of its agent in the discharge of his duty.

[6][7][8][9] By the general verdict the jury found against appellant on the issue of contributory negligence. It is claimed by appellant that the verdict on this issue is not sustained by the evidence. The burden of this issue was on appellant, and to maintain his contention it must appear that the evidence without dispute shows a state of facts from which the court could say, as a matter of law, that appellee was guilty of negligence. It is claimed that the evidence shows that he did not look or listen for signals or warning of danger before entering upon the bridge. There is evidence that a warning bell was sounded before the bridge was raised, and that persons present called a warning to him as he was about to go upon it. As to the warning bell there is some conflict in the evidence, and appellee testified that he was hard of hearing, and that he did not hear the bell or calls. The evidence shows that a yacht was approaching the bridge for the purpose of passing, and it is claimed by appellant that, had he looked, he could have seen its approach, and would have been warned that the bridge was about to be raised. Appellee testifies that he looked at the boats, and did not see any of them moving. Under such a state of the evidence the question of...