Stevens v. Lafayette & Concord Gravel Road Co.

• Decision Date: 17 December 1884
• Docket Number: 11,475
• Parties: Stevens v. The Lafayette and Concord Gravel Road Company
• Court: Indiana Supreme Court

99 Ind. 392

Stevens v. The Lafayette and Concord Gravel Road Company

No. 11,475

Supreme Court of Indiana

December 17, 1884

Rehearing Date: March 12, 1885

Reported at: 99 Ind. 392 at 394.

From the Tippecanoe Circuit Court.

F. B Everett, for appellant.

G. O Behm and A. O. Behm, for appellee.

OPINION

Bicknell, C. C.

The appellee alleged in its complaint that it had a bridge across a small stream; that the bridge was built on stone and brick abutments; that the defendant owned the lands and fences along the east line of the appellant's gravel road and across said stream; that the defendant, in November, 1880, "placed barbed wire strands on and along the fence over said stream, in such a careless and negligent manner that the same obstructed the usual flow of water arising from freshets, and damned the same up to a great height, so that the fence was torn down and gave way, and the sudden flow of the great quantity of water, thus damned up, rushed with great force and violence against the abutments of said bridge, and washed and tore the same away, and utterly destroyed said bridge, to the damage of the plaintiff of $ 500," and that the plaintiff was thereby deprived of the right to take tolls on said road for four months, while said bridge was in course of repair. Wherefore, etc.

The defendant demurred to the complaint for want of facts sufficient. The court overruled the demurrer. The defendant answered by a general denial and a special defence. A motion by the plaintiff to strike out the special defence was sustained. The issue was tried by the court, who found for the plaintiff, with $ 195 damages.

The defendant's motion for a new trial was overruled, and judgment was rendered on the finding. The defendant appealed. The errors assigned are:

1. In overruling the demurrer to the complaint.

2. In sustaining the motion to strike out the special defence.

3. In overruling the motion for a new trial.

There was no error in striking out the special defence, because its material averments were all capable of proof under the general denial. Boyce v. Graham, 91 Ind. 420. But the demurrer to the complaint ought to have been sustained.

The complaint seeks to recover damages for negligence. The allegation is that the defendant "placed barbed wire strands along his fence in such a negligent and careless manner that," etc., and there is no allegation that the injury was sustained without the fault of the plaintiff, and there are no facts averred from which it may be inferred that the plaintiff was without fault. Such allegations in such cases were not formerly required; they are not found in the precedents in Chitty's Pleading. But ever since the case of President, etc., v. Dusouchett, 2 Ind. 586, it has been invariably held in Indiana, that a complaint, seeking damages for negligence, must show that no fault of the plaintiff contributed to the injury. See the cases cited in Pennsylvania Co. v. Gallentine, 77 Ind. 322; Mitchell v. Robinson, 80 Ind. 281 (41 Am. R. 812); City of Bloomington v. Rogers, 83 Ind. 261; Town of Rushville v. Poe, 85 Ind. 83; Indiana, etc., Co. v. Millican, 87 Ind. 87; Gheens v. Golden, 90 Ind. 427; Louisville, etc., R. W. Co. v. Lockridge, 93 Ind. 191; Board, etc., v. Legg, 93 Ind. 523 (47 Am. R. 390).

Ordinarily, where a judgment is to be reversed for error in overruling a demurrer to a complaint, it is not necessary to consider reasons alleged for a new trial, but as the questions, presented in this case by the fourth and fifth reasons for a new trial, will probably again arise if the complaint be amended, we will decide them now.

The fourth reason is, that the court erred in refusing "to permit the defendant to prove and give in evidence that the act complained of in plaintiff's complaint was not negligent, but on the contrary was done in the best and most prudent way." We think the court erred in this ruling. As the complaint averred negligence, the defendant had a right to show, under the general denial, that there was no negligence.

The fifth reason is, that the court refused to permit the defendant to prove and give in evidence an offer by him to repair the injury...