Shreve v. City of Fort Wayne
| Decision Date | 13 October 1911 |
| Docket Number | 21,891 |
| Citation | 96 N.E. 7,176 Ind. 347 |
| Parties | Shreve v. City of Fort Wayne |
| Court | Indiana Supreme Court |
From Allen Circuit Court; E. O'Rourke, Judge.
Action by Frank Shreve against the City of Fort Wayne. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.
Reversed.
George W. Louttit, for appellant.
Guy Colerick, for appellee.
The action is for personal injuries to appellant, caused by being tripped by a wire, upheld by stakes, placed along the curb line of two intersecting streets for the apparent purpose of protecting a grassplot between the sidewalks and roadways. 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 Fort Wayne, the street is improved with a paved roadway, with a grassplot seven feet, four inches wide between the curb of the roadway and the sidewalk from Fulton street to Broadway, the latter being alleged to be the main north and south business street of the city; that at a point within seventy feet of the main business portion of Broadway, and on the south side of West Jefferson street there were two small stakes extending about a foot from the surface of the ground and immediately adjoining the curbing, and a half foot apart, and a third stake at right angles to the curb, and four feet, nine inches south of the western stake, from the tops of which stakes, for thirty days prior to April 10, 1907, there had been stretched a fine wire at a distance of about one foot from the ground, of which the city had notice, or could have known by the exercise of ordinary diligence, but it carelessly and negligently permitted said wire to remain, knowing that hundreds of people passed the place daily; that such wire and stakes created a dangerous condition, and that there was nothing to warn the public of their existence, except the obstruction itself; that at night it was impossible for pedestrians to know of their existence, as there was no light within eighty 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 had been accustomed to walking across that part of the strip of ground where the stakes were placed; that it was impossible to see the stakes or wire because of the intense darkness at that point, and because there was nothing to warn the public of the danger of crossing; that there was no grass at the point, and that 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 by its said appearance into thinking said point was for public travel. Other allegations sufficiently bring notice to the city. It is alleged that about 10 o'clock p.m. on April 9, 1907, at a time when it was intensely dark, plaintiff, not knowing of the existence of said stakes and wire in the place and condition as herein alleged, and, though having good eyesight, he was unable to see them, while hurrying to catch a car that was on said Broadway, ran west on West Jefferson street; that plaintiff was carrying a camera, and also a case containing a flash-light apparatus; that he was following the beaten path of said highway, across which was stretched the wire; that said wire and the stakes supporting it were the same color as the ground, and a person in an upright position would be unable to ascertain the existence thereof; that plaintiff, without fault on his part, ran into said wire and stakes, which defendant had 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 thereof, and was violently hurled to the asphalt pavement, whereby he was greatly injured. The specific injuries are set out.
Appellee's contention is that as § 8888 Burns 1908, Acts 1905 p. 219, § 234, provides for grassplots on streets, stretching wires across and along them to protect them cannot be regarded as unlawful, and that under the doctrine set out in the case of Teague v. City of Bloomington (1907), 40 Ind.App. 68, 81 N.E. 103, and cases there collected, a city is not liable.
Whatever may be the logical grounds for the distinction, if any, between the liability of cities 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 to be explained. 4 Dillon, Mun. Corp. (5th ed.) §§ 1713-1717, discusses the question somewhat fully.
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 whether the wire was at the intersection of the streets, but assume that it was, and that it was put there to protect a grassplot. The case is so treated by counsel. We do not attach any importance to the allegation that there were no lights at that locality, except as it might be a factor in determining reasonable care as to the alleged obstruction itself. A city is under no legal duty to light any locality. Negligence does not arise as a matter of law from the mere fact of its absence. 4 Dillon, Mun. Corp. (5th ed.) § 1701; Town of Spencer v. Mayfield 1909), 43 Ind.App. 134; Mitchell v. City of Tell City (1908), 41 Ind.App. 294; City of Vincennes v. Spees (1905), 35 Ind.App. 389, 74 N.E. 277; City of Vincennes v. Thuis (1902), 28 Ind.App. 523, 63 N.E. 315; White v City of New Bern (1907), 146 N.C. 447, 59...
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