Spicer v. Bd. Com'rs Elkhart Cnty.

• Decision Date: 17 December 1890
• Parties: Spicer v. Board Com'rs Elkhart County.
• Court: Indiana Supreme Court

126 Ind. 369

26 N.E. 58

Spicer

v.Board Com'rs Elkhart County.

Supreme Court of Indiana.

Dec. 17, 1890.

Appeal from circuit court, La Grange county; J. D. Osborne, Judge.

J. M. Vanfleet, for appellant. Wilber L. Stonex, for appellee.

BERKSHIRE, J.

The appellant was the plaintiff in the court below. The appellee addressed a demurrer to the complaint, which was sustained, and an exception to the ruling of the court noted. The appellant refused to amend her complaint, and judgment was rendered against her for want of a sufficient cause of action. The only question presented by the record is whether or not the complaint stated a good cause of action. The action was to recover damages for personal injuries. The complaint alleges that, for 10 years preceding the institution of the action, there had been an iron bridge across the St. Joseph river, and within the corporate limits of the city of Elkhart, erected by the appellee, at a cost of $20,000. It further appears that said bridge was a part of one of the main traveled streets in said city; that the appellee, in the year 1886, let a contract to repair the said bridge, at the sum of $4,650, to one William Smith, and at the same time employed one John J. Newman to superintend the work, and to see that it was properly done; that, in making said repairs, the planks forming the floor of said bridge were taken up, and removed for a space of 12 feet, leaving an open hole 12 feet wide and 16 feet deep; that no barricades were put around said hole, and no lights placed so that it could be seen after night-fall; that in the afternoon, near half past 10 o'clock, the appellant was walking across said bridge on her way home from the paper-mill; that it was very dark, and she was walking slowly and carefully, and using due care, when without fault on her part, she fell into said hole, and was severely injured.

Brushing aside all other questions, we deem the complaint bad for this reason: It does not appear that the bridge belonged to the appellee, nor that it was its duty to keep it in repair. The bridge being within the city of Elkhart, and forming one of its streets, it was incumbent upon the appellant to show by affirmative averments that it was the duty of the county to maintain the structure. City of Goshen v. Myers, 119 Ind. 196, 21 N. E. Rep. 657; Board v. Deprez, 87 Ind. 509. The fact that the county had built the bridge, and had contracted for its repair, did not disclose the county's...