Sale v. Aurora & L. Tpk. Co.

• Decision Date: 02 April 1897
• Citation: 46 N.E. 669,147 Ind. 324
• Court: Indiana Supreme Court
• Parties: SALE v. AURORA & L. TURNPIKE CO.

147 Ind. 324

46 N.E. 669

SALE

v.AURORA & L. TURNPIKE CO.

Supreme Court of Indiana.

April 2, 1897.

Appeal from circuit court, Dearborn county; A. C. Downey, Judge.

Action by Fleetwood H. Sale against the Aurora & Laughery Turnpike Company. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Omar F. Roberts, for appellant. McMullen & McMullen, for appellee.

MONKS, J.

Appellant brought this action against appellee to recover damages for injuries alleged to have been received while traveling upon appellee's road. Appellee's demurrer to the amended complaint was sustained, and, appellant refusing to plea further, judgment was rendered against him. The only error assigned calls in question the action of the court in sustaining said demurrer. That part of the complaint necessary to the determination of the question presented is substantially as follows: In 1895 appellee was, and had been for 45 years, the owner of a turnpike road commencing at the city of Aurora, Dearborn county, and running thence through the town of Cochran, in said county, and collected during all of said time toll for travel thereon. That at or near the east boundary of said town of Cochran the bed of said turnpike road is only 20 feet in width, on which vehicles can travel, and that at said point, for a distance of 300 feet, the turnpike bed was constructed and maintained on a curved line. That said line curves south, in traveling on the turnpike west, and on the north side, along said curved line, there has been at all times a steep embankment, fill, and pitfall, 100 feet long and 5 feet deep, and high; and immediately on the opposite side of said turnpike, for 100 feet, there has been at all times a deep ditch, 3 feet wide and 3 feet deep, and the space between said ditch, on the south side, and embankment, on the north side, which can be safely used, is only 20 feet. That appellee's right of way along said part of the turnpike is 60 feet. That appellee negligently failed to erect or maintain any railing, guard, or other barrier along said embankment, fill, and pitfall, to protect persons and vehicles traveling over said turnpike from falling over and down said embankment at said point. That appellant was a practicing physician, and had for several years immediately before the commencement of the action, in April, 1895, resided at Aurora, and had practiced his profession in that city and the surrounding neighborhood, including the town of Cochran. That in March, 1894, at 10:30 o'clock at night, appellant was called to visit a patient at the town of Cochran. That he at once started to attend said call; traveling, in a buggy drawn by one horse, over appellee's road, which was then the best common and usually traveled route to reach said patient's residence. That at the time he left his residence it was dark, and he proceeded along said road westward, and, as he approached the east line of said town of Cochran and said embankment and pitfall, he used due care and caution to prevent an accident, and that in driving and guiding said horse at said point, by reason of the darkness, appellant could not distinctly see said space of 20 feet, or said embankment, though then and there using due care and caution as aforesaid; and there being no guards, railing, or posts, or other obstruction, along said embankment as aforesaid, to prevent persons, horses, and vehicles, in the darkness, from passing over and falling down said embankment, the said horse attached to the buggy in which appellant was riding, without any fault or negligence on the part of appellant, but solely on account of the negligence of appellee, as herein averred, walked over and down said embankment and into said pitfall, etc.

It is urged that the facts alleged are not sufficient to show that appellee was required to erect and maintain guards or barriers along said turnpike where it is alleged appellant's horse walked over the embankment. It is true, as claimed by appellee, that roads in the country or outskirts of a city are not required to be constructed and maintained the same as is required in the thickly-settled parts of a city. What would constitute a defect in the street of a city might be no defect at all in a turnpike road in the country. It may be necessary that the whole width of some streets in a city be worked and maintained so as to be passable for wheeled vehicles, yet this will not be required of a turnpike road in the country. Whether a street or turnpike is reasonably safe for travel is a question to be determined by the surrounding circumstances, the nature and surface of the soil over which the road is made, the natural obstructions and obstacles to be overcome, its situation and locality, and the kind and amount of public travel which passes over it. 2 Shear. & R. Neg. § 352; Rice v. Town of Montpelier, 19 Vt. 470;Kelsey v. Town of Glover, 15 Vt. 708;Green v. Town of Danby, 12 Vt. 338; Hull v. Richmond, 2 Woodb. & M. 337, Fed. Cas. No. 6,861; Fitz v. Boston, 4 Cush. 365;Howard v. Inhabitants of North Bridgewater, 16 Pick. 189;Macomber v. City of Taunton, 100 Mass. 256;Morse v. Belfast, 77 Me. 44;Perkins v. Inhabitants of Fayette, 68 Me. 152; Blake v. Inhabitants of Newfield, Id. 365; Spaulding v. Inhabitants of Winslow, 74 Me. 537;Farrell v. Inhabitants of Oldtown, 69 Me. 72;Monongahela City v. Fischer, 111 Pa. St. 9, 2 Atl. 87; City of Scranton v. Hill, 102 Pa. St. 378; Keyes v. Marcellus, 50 Mich. 439, 15 N. W. 542;Fulliam v. City of Muscatine, 70 Iowa, 436, 30 N. W. 861;Parkhill v. Town of Brighton, 61 Iowa, 103, 15 N. W. 853;Wheeler v. Town of Westport, 30 Wis. 392;Farnum v. Town of Concord, 2 N. H. 392;Johnson v. Town of Haverhill, 35 N. H. 74; Hubbard v. City of Concord, Id. 52; Graves v. Shattuck, Id. 257; Winship v. Enfield, 42 N. H. 197; 2 Dill. Mun. Corp. §§ 1006, 1008, 1016, 1019, and cases cited in notes. It is said in 2 Shear. & R. Neg. § 352, that: “It may even be doubted whether width for the passage for more than one carriage will be required on a country road in places where ledges of rock or other great natural obstacles interpose. The most that can be required in a road of so difficult a nature is that the sides should be in such a state as would admit, without unusual delay or trouble, of the passing of carriages when they meet.” In Wheeler v. Town of Westport, supra, it was said: “What would be considered a reasonably safe and convenient road in a sparsely-settled rural district, where there is but little public travel, might and generally would not be so regarded in the midst of denser populations, or in crowded thoroughfares in or near to cities or large towns and villages, where increased facilities and superior accommodations are required for the great numbers of travelers and vehicles by which the highway is almost continuously occupied. So, too, what may be looked upon as reasonably safe and convenient passage in a broken or mountainous region, where the road has to be made over steep hills and through rugged valleys, along the narrow margin of streams, or upon the sides of declivities or rocky or precipitous places, might not be so considered where it lies upon a plain or level country, or over the undulating and smooth surface of an open prairie. No one would expect, for example, to find the same ease and facility, the same safety and convenience, of travel upon a road running up and down the bluffs and steep hillsides bordering upon the Mississippi, and other rivers flowing into it in the western part of this state, or over and through the cedar and tamarack swamps in the northern part of it, as should be found upon the roads across the prairies and through the openings in the central and southern portion of the state. * * * No one anticipates the same space or breadth of ground for travel on roads constructed in narrow valleys or ravines, or along the sides of hills, or through dense woods or swamps, as on roads made in places where these natural impediments and difficulties do not exist.” In Morse v. Belfast, 77 Me., on page 47, the court said: “But in the construction of such ways it often becomes necessary, as well as proper, to construct ditches along their sides; and, when this is properly done, it is not the province of the court to declare them defects. This is in accordance with the principle laid down in Macomber v. City of Taunton, 100 Mass. 256, in which Chapman, C. J., says: ‘On each side of this way there may be ditches. These are so necessary for the proper drainage of the carriageway that they are held not to be defects, if properly constructed, though travelers may be liable to fall into them in the dark.’ The plaintiff also claims there should have been a rail between these ditches and the traveled way. If it were necessary in this instance for the purpose of rendering the road reasonably safe and convenient, we have no doubt there are very few roads then in our state which would not require it. As was remarked by Peters, J., in the recent ...