Sarber v. City of Indianapolis

• Citation: 72 Ind.App. 594,126 N.E. 330
• Decision Date: 20 February 1920
• Docket Number: No. 10159.,10159.
• Parties: SARBER v. CITY OF INDIANAPOLIS.
• Court: Court of Appeals of Indiana

72 Ind.App. 594

126 N.E. 330

SARBER

v.CITY OF INDIANAPOLIS.

No. 10159.

Appellate Court of Indiana.

Feb. 20, 1920.

Appeal from Superior Court, Marion County; Theophilus J. Moll, Judge.

Action by Oliver B. Sarber against the City of Indianapolis. From judgment for defendant, plaintiff appeals. Affirmed.

Charles F. Remy and James M. Berryhill, both of Indianapolis, for appellant.

Walter Myers, of Indianapolis, for appellee.

McMAHAN, J.

This is an action by appellant to recover damages for the loss of services of his minor son, who was drowned in White river, contiguous to Riverside Park, in the city of Indianapolis. The only question presented is the action of the court in sustaining a demurrer to the complaint.

This complaint is in two paragraphs, and, in substance, alleges that the appellee had complete control and supervision over said park, which was located in the northwestern part of the city, being bounded on the south by Eighteenth street, and extending northward, bordering upon White river, for a distance of about two miles, to Thirty-Eighth street; that from Eighteenth street to a point about 200 feet north of Thirtieth street said park lay along, and bordered upon, both sides of the river, and from that point north to Thirty-Eighth street it bordered only upon the west side of the river; there was a bridge across the river at Thirtieth street, near which the appellee had erected a large number of buildings for the use and comfort of those persons who from time to time would visit the park; that the appellee leased that part of the park lying north of Thirtieth street and east of the river to one Strowbridge, to be used for boathouses, wharfs, and landings for pleasure boats; that a large number of such boats kept at such place were used on said river; that a number of high-powered motorboats were, with the knowledge and consent of appellee, kept on said river in and bordering upon the park; that appellee created and established in the park near Thirtieth street a playground and place of amusement, and invited the public to go to said place; that appellee assumed control of the river north of Thirtieth street for a distance of one mile, and made it a part of said playground and place of amusement; that during the summer of, and prior to July 2, 1914, appellee knowingly, negligently, and carelessly permitted said portion of said river to be occupied and used by motorboats and launches in charge of reckless and careless persons, and knowingly and negligently permitted high-powered motorboats, occupied and in charge of reckless and careless persons, to race and go at a high and dangerous rate of speed over the part of said river over which it had assumed jurisdiction; that hundreds of pleasure boats, occupied by persons invited by appellee to do so, were plying the waters of said river.

It is further charged that prior to July 2, 1914, appellee suffered and permitted strands of barbed wire and broken fence of barbed wire to be washed into said river, and to become imbedded in the bottom of that portion of said stream used and occupied by boats to which the public were by appellee invited, and that appellee negligently and carelessly suffered and permitted said wire to be and remain so imbedded, and to become dangerous and perilous to those who were boating upon said river in the event a boat was upset at or near the location of said wire; that appellee knew when the said wire was washed into said river, and suffered the same to remain in said river without notice of warning to those boating on the river, and that said Stuart Sarber at no time knew that said barbed wire was in said river.

It was also alleged that on July 2, 1914, appellant's son, Frank Sarber, with three other young people, were boating upon White river north of Thirtieth street; that appellant's said son and his companion occupied one canoe, and the other couple, Howard Coombs and Bernice Gibson, occupied another boat; that appellee at that time knew there were a large number of canoes and boats upon that part of said river; that there were, with the permission and invitation of appellee, high-powered motorboats in charge of careless and reckless operators; that appellee at the time knew that said barbed wire was in and imbedded in the bottom of said river at the place where appellant's said son and companions were boating, and knew the dangers to appellant's son and his companions, in that the boat in which they were riding might be overturned by coming in contact with said motorboats, and the occupants of such overturned boats thrown into the river, and their lives endangered by reason of the presence of said barbed wire in the river. It is also charged that the boat occupied by Howard Coombs and Miss Gibson was run down and overturned by a high-powered motorboat which was being operated in a reckless and unlawful manner by persons known to appellee to be reckless and careless operators and careless users of said stream, and which motorboat was racing upon said river; that Miss Gibson was thrown into the river at a point where the water was six or eight feet deep; that appellant's son, being an expert swimmer, leaped into said river for the purpose of rescuing Miss Gibson, and that he would have rescued her, except for the fact that her clothing became entangled and fastened in said barbed wire and had not his clothing also become entangled and fastened in said barbed wire, but that, because said wire had been so negligently and carelessly permitted by appellee to be and remain in said river, appellant's son was drowned in an attempt to rescue Miss Gibson. The gist of the negligence charged in the complaint is that appellee “negligently and carelessly suffered and permitted said wire to be and remain so imbedded, and to become dangerous and perilous to those who were boating upon said river, in the event a boat was upset at or near the location of said covered perils, and suffered and permitted said barbed wire so to remain on the bottom of said river, without notice or warning to any one.”

Appellant and appellee do not differ much in their contentions as to what the law is. They differ, however, in its application to the facts alleged in the complaint.

[1] Appellant contends that the case of City of Kokomo v. Loy, 185 Ind. 18, 112 N. E. 994, is controlling and fixes the liability of appellee. It was there held that a municipal corporation, having the power of exclusive control and custody of its parks through a board of park trustees, created in accordance with section 8747a, Burns 1914 (Acts 1909, p. 155), is liable for an injury resulting in their management. If it be held that the alleged negligence of appellee was not a proximate cause of the injury of which complaint is made, it will not be necessary for us to give the Loy Case any consideration.

[2][3][4][5][6] It therefore becomes necessary for us to determine whether the alleged negligence of the appellee was a proximate cause of the death of appellant's son, or whether such negligence was merely a circumstance or condition in the chain of causes leading up to and producing such death.

Appellee contends that the proximate cause of the collision and the throwing of Miss Gibson into the river was the negligence of the operator of the motorboat, and not the negligence of the appellee, and that the presence of the wire in the river could in no sense be the proximate and natural cause of the injury of which complaint is made. Appellant, on the other hand, contends that the proximate cause of the death of his son was the alleged negligence of the appellee in knowingly suffering and permitting the wire to be and remain in the river under the circumstances as alleged in the complaint.

It is settled that where there are several causes, dependent or independent of each other, all of which contribute to an injury, an action may, in a proper case, be founded upon all or any of the causes (Louisville, etc., R. Co. v. Hicks, 11 Ind. App. 588, 37 N. E. 43, 39 N. E. 767); and that where two causes combine to produce an injury, both being proximate, one the result of negligence, the other an incident, as to which neither party is at fault, the negligent party is liable if the injury would not have happened but for such negligence (Toledo, etc., v. Tapp, 6 Ind. App. 304, 33 N. E. 462).

In the case of Alexander v. Town of New Castle, 115 Ind. 51, 17 N. E. 200, the plaintiff was passing along a street in charge of a prisoner. In attempting to escape the prisoner seized him, and threw him into a pit negligently permitted by the town authorities to remain in the street. In holding that the negligence of the town was not the proximate cause of the injury suffered by plaintiff, the court said:

“However negligent a person or a corporation may have been in some particular respect, he or it is only liable to those who may have been injured by reason of such negligence, and the negligence must have been the proximate cause of the injury sued for. Where some independent agency has intervened and been the immediate cause of the injury, the party guilty of negligence in the first instance is not responsible.”

In Faulkner v. City of Aurora, 85 Ind. 130, 44 Am. Rep. 1, where an ordinance had been adopted prohibiting coasting on the streets, it was held that the appellee was not liable for any injury occurring as a result of coasting for sport in the presence of the officers and police of the town, the court saying, at page 139 of 85 Ind. (44 Am. Rep. 1):

“It is obvious that in the case before us the injury did not result from any defect in the highway. It was produced by the act of those improperly and unlawfully using the highway, which was at the time, and but for the unlawful acts of those improperly using the street, in a reasonably safe and convenient condition for public travel. The complaint is not that the appellant's son was injured because of defects in the street rendering it...