The Board of Commissioners of Boone County v. Mutchler
| Decision Date | 20 February 1894 |
| Docket Number | 16,457 |
| Citation | 36 N.E. 534,137 Ind. 140 |
| Parties | The Board of Commissioners of Boone County v. Mutchler |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
The judgment is affirmed.
O. P Mahan, W. Fertig and H. J. Alexander, for appellant.
T. J Kane, P. H. Dutch and T. P. Davis, for appellee.
This was an action by appellee to collect damages for injuries alleged to have been caused by a defective bridge constructed by appellant upon a free gravel road.
A verdict was returned for appellee in the sum of five thousand dollars; whereupon, a remittitur having been entered for three thousand dollars, judgment was rendered in appellee's favor for two thousand dollars.
The cause was originally appealed to the Appellate Court, where it appearing that one of the judges had been of counsel in the trial court, and the other judges being equally divided as to the decision proper to be made on the appeal, the cause was transferred to this court, as required by statute. Acts 1891, p. 39.
It is urged against the sufficiency of the complaint on demurrer, that it is not alleged therein that the bridge was constructed across a watercourse.
A like objection was held insufficient in the case of Board, etc., v. Legg, Admr., 110 Ind. 479, 11 N.E. 612. It was contended, in that case, that since the bridge "was a small one, over an artificial ditch, dug for the purpose of draining wet lands," therefore, it was not a bridge over a "watercourse," and the county was not bound to keep it in repair.
The court said: See, also, Board, etc., v. Bailey, 122 Ind. 46, at p. 49, 23 N.E. 672.
The accident, in the case at bar, as stated in the complaint, occurred in Boone county, Indiana, while the appellee was traveling in a buggy, drawn by one horse, "upon a certain highway, in said county and State, known as the Lebanon and Elizaville free gravel road, a public highway in said county and State * * *, established, constructed and managed by said county." And it is alleged: "That in said highway, and as a part thereof, the defendant had unlawfully and negligently constructed a bridge across and over what is known as the Heath ditch, and which is known, and has been, as 'Brown's wonder.'"
The dimensions of the bridge are given as "forty feet long, about sixteen wide, and eight feet above the ditch and ground from one end to the other of said bridge."
We think the bridge so built across "the Heath ditch," is one which the board was required to keep in repair under the provisions of section 2892, R. S. 1881, requiring that: "The board of commissioners of such county shall cause all bridges therein to be kept in repair."
Not only as a bridge over the ditch, but, also, as a bridge which was constructed by the county as a part of a free gravel road, a public highway of said county, was the board required to see that the bridge was safe for public travel.
In State, ex rel., v. Sullivan, 74 Ind. 121, in passing on the question as to a bond from a contractor, as required by section 4246, R. S. 1881, it was decided that when the county board takes charge of the construction or improvement of a free gravel road, the same becomes a "county work," in the same sense as the building or repair of a court house, jail, or other public building.
And, in passing on the question of the liability of a township for a part of the expense of maintaining a public bridge connected with a free gravel road, it was said by this court, in the case of Board, etc., v. Washington Township, 121 Ind. 379, 23 N.E. 257, that while, in certain cases, a township will be required to contribute to the construction or repair of such a bridge, yet the general duty is imposed upon the county, and the means of performing the duty are vested exclusively in the county officers. The county, therefore, and not the township, becomes liable for a neglect of this duty. See, also, Board, etc., v. Emmerson, supra; Board v. Bacon, supra.
So, in Board, etc., v. Arnett, 116 Ind. 438, it was held that counties are liable for damages resulting from neglect in keeping bridges on public highways in repair, without regard to the cost of such repairs, and even though it might be the particular duty of some township or other officer to attend to such matters.
Even if the bridge has not been built, but be adopted and used as a public bridge, the liability attaches.
In State, ex rel., v. Demaree, 80 Ind. 519, it was said that: See, also, Vaught v. Board, etc., supra.
In this State, the streets of a city or a town are under the control of their respective municipal authorities, and such municipalities are, therefore, held responsible for the safe condition of the streets, including, also, sidewalks, alleys, and bridges, within the corporate limits. In like manner, the boards of county commissioners are charged with the care of the bridges on public highways, and are held liable in damages for neglect of such duty. House v. Board, etc., 60 Ind. 580; Yeager v. Tippecanoe Township, 81 Ind. 46; Board, etc., v. Pritchett, 85 Ind. 68; Board, etc., v. Deprez, Admr., 87 Ind. 509; Board, etc., v. Montgomery, 109 Ind. 69, 9 N.E. 590; City, etc., v. Myers, 119 Ind. 196; Spicer v. Board, etc., 126 Ind. 369, 26 N.E. 58. See, also, Elliott's Roads and Streets, 41, and notes.
It is next contended that the complaint is insufficient, for the reason that it is not alleged that the injury was caused by the alleged defect in the bridge.
It is alleged in the complaint, "That said defendant, in constructing said bridge, unlawfully, negligently, and carelessly, failed and omitted and neglected to place at the sides thereof any railing, balustrade, or guards; said bridge being forty feet long, about sixteen feet wide, and eight feet above the ditch and ground, from one end to the other of said bridge; and, after having so unlawfully and negligently constructed said bridge, did unlawfully and negligently permit said bridge to remain in said dangerous condition ever since, and did unlawfully and negligently omit to place on said bridge any railing, guards, or balustrading, or in any way guard the sides of said bridge; that said bridge, constructed as aforesaid, and permitted to remain in such condition, was dangerous for public travel; * * * that while plaintiff was passing over said bridge in a buggy, drawn by one horse, in company with her daughter, when, about two-thirds of the way across said bridge, her said horse became frightened at a hog that was under said bridge, and, without any fault of plaintiff, backed the buggy in which plaintiff was riding off said bridge at the side thereof, at a point where there was no railing or guard, or any protection, to prevent plaintiff's buggy from passing off the side of said bridge, said horse, following said buggy and backing off said bridge at the side thereof, falling upon plaintiff and buggy in which plaintiff was riding; that said horse became frightened without any fault of plaintiff * * * and, by reason of the negligent and unlawful conduct aforesaid of defendant, did back said buggy and self over and off the side of said bridge, at a point where the defendant had unlawfully and negligently omitted to construct railing or guards; that plaintiff was dangerously and severely injured by reason of being backed off said bridge, as aforesaid; * * * that said injuries were caused and produced wholly by the said negligent conduct of the defendant, and that plaintiff did not contribute in any way to cause or produce said injuries, and was without fault on her part."
The foregoing allegations, as made in the first paragraph of the complaint, are substantially repeated in the second paragraph.
We think they are abundantly sufficient to show that the injury to appellee was caused by the alleged defect in the bridge, to wit, the absence of any railing or guards at the sides of the bridge; and that this defect was due to the careless construction of the bridge by the appellant board of commissioners, and by the failure on the part of the board to place any such guards on the bridge from the time of its construction up to the time of the accident; and that the appellee was herself without fault.
It is contended, by counsel for appellant, that inasmuch as another...
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