Sullivan County v. Arnett

• Citation: 19 N.E. 299,116 Ind. 438
• Parties: Sullivan County v. Arnett.
• Decision Date: 03 January 1889
• Court: Supreme Court of Indiana

116 Ind. 438

19 N.E. 299

Sullivan County

v.Arnett.

Supreme Court of Indiana.

January 3, 1889.

Appeal from circuit court, Sullivan county; George W. Buff, Judge.

Action by Isaac H. Arnett against the board of commissioners of Sullivan county, to recover damages for the death of a colt caused by injuries received on a defective bridge. Verdict and judgment for plaintiff, and defendant appeals.John T. Beasley and A. B. Williams, for appellant. John S. Hays, for appellee.

Zollars, J.

Appellant's colt was injured upon and by reason of a defective bridge upon a public highway. The injuries resulted in its death. He instituted this action against the county to recover the damages which he claims to have suffered by the loss of his colt. He recovered a judgment below. Appellant's counsel contend that the county is not liable, for the reason that the bridge might have been repaired for less than $75. That contention is based upon the third section of the act of 1885, (Acts 1885, p. 203,) which is an amendment of the nineteenth section of the act of 1883, (Acts 1883, p. 68,) and provides that, “if the probable cost of constructing or repairing any bridge or culvert shall exceed seventy-five dollars, the township trustee of the township where such proposed bridge or culvert is to be located shall notify the board of commissioners of his county of the necessity of such bridge or culvert, and if, in the opinion of the county commissioners, the public convenience shall require the building or repairing of such bridge or culvert, they shall cause surveys and estimates thereof to be made, and cause the same to be erected. The trustee of the said township in which is located the said bridge or culvert shall however pay from the road fund of the said township seventy-five dollars of the cost of such building or repairs: provided, however, that the county commissioners may, in their discretion, direct the trustee of the said township in which is located such bridge or culvert to proceed with the building or repairing of such bridge or culvert, and appropriate from the county treasury money for the payment of all costs of such building or repairs in excess of seventy-five dollars: provided, further, that if the board of commissioners shall not deem such bridge or culvert of sufficient importance to make an appropriation from the county treasury for the building or repairing thereof, the trustee of the township in which is located such bridge or culvert may appropriate any part of the road tax fund in the township treasury for that purpose, if he shall deem it right and expedient to do so.”

It may reasonably be said, as contended by appellee's counsel, that the record does not fairly present the question which counsel for appellant insist arises in the construction of the foregoing section of the act of 1885. Very clearly the pleadings do not present the question. The evidence shows that the colt was injured by stepping into a hole in the floor of the bridge. Probably it would have cost less than $75 to repair the floor at the place where the colt was injured, but it is not shown that such repair was all that was necessary. On the other hand, it is shown that the bridge had been damaged by the falling of a tree upon it some three years before the injury to the colt, and that it finally became impassable, and was abandoned a short time thereafter. It does not follow that because the stopping of the particular hole in the floor might have prevented the injury to the colt no other repairs were necessary. As we have seen, other repairs were necessary. To have repaired the floor at the place where the colt was injured would have been but a partial performance of duty. Such repairs to the floor might have prevented the injury to appellee's colt at that particular time, but other property, and perhaps persons, might have been injured by reason of other defects in the bridge. When a bridge is out of repair, and an investigation is made by the township trustee, or by the county board, as to the cost of the needed repairs, the investigation must not stop with some particular defect which may have caused an injury to persons or property. What would have been the cost of a proper repairing of the bridge is not shown, and hence it cannot be determined from the record before us that the case falls within the construction which appellant's counsel put upon the act of 1885, supra. Our judgment, however, is that that act does not exonerate the county, or the board of commissioners, which is the same, from the duties and responsibilities resting upon them in relation to bridges upon public highways. statutes very similar have been in force for many years. The act of 1857, for example, provides that if the estimated cost of the building or repairing of a bridge shall exceed the ability of the road-district in which such bridge is to be built, by the application of its ordinary road work tax, to perform, the county commissioners may make an appropriation from the county treasury to build or repair the same. Rev. St. 1881, §§ 2885, 2886. The act of 1881, in relation to the construction and repair of highways, provided that the superintendent of roads in each township should take charge of all roads, highways, and bridges in his township, and cause the same to be kept in as good condition as the prudent use of the means in his hands would permit, etc. Id. § 5065. And so the act of 1883 provides that the supervisor of roads shall carry into effect all orders of the trustee of the township in which the road-district is situated, touching the highways and bridges therein, and keep the same in good repair. Acts 1883, p. 63, § 5. Section 19 of that act, which, as we have stated, was amended by the act of 1885, supra, provided that, if the probable cost of constructing any bridge or culvert should exceed $50, it should be the duty of the township trustee of the township where such proposed bridge or culvert was to be located to notify the board of commissioners of his county of the necessity of such bridge or culvert, and to state the probable cost of the same, and that, if satisfied that the bridge would be of public utility, and would cost $50 or more, the county board should order the bridge to be constructed and paid for out of the county bridge fund.

It seems to have been contemplated by these several statutes, just as clearly as by the act of 1885, supra, that the road and township officers should and shall exercise a supervision over the bridges in the township and road-districts, and construct and repair them when the cost of such construction and repair did not and does not exceed a certain amount, fixed in the former acts at $50, and in the act of 1885 at $75, and that when the cost of such construction or repair was or is less than the amount named it should and shall be paid out of the township road fund. If, under the act of 1885, as contended by appellant's counsel, the county is not bound to repair a bridge unless the cost of the same exceeds $75, and is exonerated from liability in all cases where the repairs might have been made for that sum, there is no sufficient reason for the holdings that, under the law as it stood before ...