Shreve v. City of Ft. Wayne

• Decision Date: 13 October 1911
• Docket Number: No. 21,891.,21,891.
• Citation: 96 N.E. 7,176 Ind. 347
• Parties: SHREVE v. CITY OF FT. WAYNE.
• Court: Indiana Supreme Court

176 Ind. 347

96 N.E. 7

SHREVE

v.CITY OF FT. WAYNE.

No. 21,891.

Supreme Court of Indiana.

Oct. 13, 1911.

Appeal from Circuit Court, Allen County; Edward O'Rourke, Judge.

Action by Frank Shreve against the City of Ft. Wayne. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed, with directions to overrule demurrer and for further proceedings. This cause was transferred from the Appellate Court under the provisions of section 1405, Burns' Ann. St. 1908.

George W. Louttit, for appellant. Guy Colerick, for appellee.

MYERS, J.

The action is upon a complaint in one paragraph for personal injuries to appellant in being tripped by a wire or string upheld by stakes at right angles along the curb line of two intersecting streets for the apparent purpose of protecting a grass plot between the sidewalks and roadways from persons passing over it. The question turns upon the effect to be given the following material averments of the complaint, to which a demurrer for want of facts to constitute a cause of action was sustained: “That at a point on said strip of ground and in front of a dwelling house on West Jefferson street, which runs east and west, in the city of Ft. Wayne, the street is improved with a paved roadway, with a grass plot seven feet four inches wide between the curb of the roadway and the sidewalk from Fulton to Broadway streets, the latter being alleged to be the main north and south business street of the city; that at a point within 70 feet of the main business portion of Broadway and on the south side of West Jefferson street there were two small rods or stakes extending about a foot from the surface and immediately adjoining the curbing and one-half foot apart, and a third stake at right angles to and four feet and nine inches south of the western rod, from the tops of which rods or stakes for 30 days prior to April 10, 1907, there had been stretched a string or fine wire at a distance of about one foot from the ground, which the city had notice of, or could have known by the exercise of ordinary diligence, but carelessly and negligently permitted to remain, knowing that hundreds of people passed the place daily, and many people passed over the spot where the wire or string and rods were located, and that the string or wire and rods were in that condition dangerous, and that there was nothing to warn the public of their existence except the obstruction itself, and that at night it was impossible for pedestrians to know of their existence, and there was no light within 80 feet of the place; that West Jefferson street at the point was a much traveled street, and that for a long time prior to April 10, 1907, the public and citizens generally were in the habit of walking across that part of the strip of ground where the rods were placed, and that in walking upon the strip at that point it was impossible to see the rods, string, or wire because of the intense darkness at that point, and because there was nothing to warn the public of the danger of crossing or walking thereon; that there was no grass at the point, and it had the appearance of being frequently traveled by the public, and that it was a part of the public highway for travel, all of which plaintiff believed, having been deceived into thinking said point was for public travel by its said appearance. Other allegations sufficiently bring notice to the city.” It is then alleged “that about 10 o'clock p. m. on the 9th day of April, 1907, at a time when it was intensely dark, and plaintiff not knowing of the existence of said rods, wire, or string in the place and condition as herein alleged, and plaintiff, though having good eyesight, being unable to see the same, to catch a car that was upon said Broadway, ran west on said West Jefferson street, carrying a camera and case, containing a flashlight apparatus, and in running to catch said car followed the beaten path of said highway, across which was stretched the rods, wire, and string, said wire, string, and rods being of the same color as the ground, and a person in an upright position being unable to see or ascertain the existence of the same, and plaintiff without fault on his part ran into said wire, string, and rods, which defendant carelessly and negligently permitted to remain in the dangerous condition and place as aforesaid, there being no light or guards to warn plaintiff of the existence of the same, which rods, wire, and string tripped this plaintiff, and violently hurled him to the asphalt pavement, whereby he was greatly injured,” the specific injuries being set out.

Appellee's contention is that, as by statute (section 8888, Burns 1908), grass plots on streets are provided for, stretching wires across and along them to protect them cannot be regarded as unlawful, or as obstructions, and that under the doctrine of Teague v. City of Bloomington, 40 Ind. App. 68, 81 N. E. 103, and cases there collected, a city is not liable.

[1] Whatever may be the logical grounds for the distinction, if any, between cities being liable for negligence arising from the condition of streets, and nonliability of counties and townships for defects in highways, the doctrine seems now too well settled in this state to be called in question, or the reasons sought to be explained. A late edition of Dillon on Municipal Corporations discusses the question somewhat fully. Dillon, Munic. Corp. (5th Ed.) §§ 1713-1717, both inclusive. We are not advised by the complaint as to the purposes to which the strip between the sidewalk and the curb of the roadway was put, or...