The City of Madison v. Baker
| Decision Date | 18 September 1885 |
| Docket Number | 12,050 |
| Citation | 2 N.E. 236,103 Ind. 41 |
| Parties | The City of Madison v. Baker |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
The judgment is reversed with costs, and the cause remanded for further proceedings.
E. G Hay and P. E. Bear, for appellant.
J. P Wells, for appellee.
Suit by John R. Baker against the city of Madison, for negligently permitting one of its streets to be out of repair, whereby the plaintiff was injured. Trial by a jury. Verdict and judgment for the plaintiff.
Error is first assigned upon the alleged insufficiency of the complaint to support the judgment.
The complaint averred that Ryker's Ridge Turnpike Road connected with one of the streets of the city of Madison, and that said street, in connection with said turnpike road formed a continuous highway through said city; that on the 26th day of October, 1883, and for some time before, said highway was badly out of repair, and was dangerous to travel upon in a wagon at night; that said city had allowed a large ditch to be washed out on one side of said highway, about three feet wide, and of about the same depth, and to remain without any fence or other barrier to restrain travellers from danger, or any sign to show them where the dangerous part of said highway was; that there was no gas or other light within a hundred and fifty yards of said ditch; that in the early part of the night of the said 26th day of October, 1883, the plaintiff was travelling on said highway with his wagon and team, consisting of two horses, having his son and minor daughter with him in the wagon, to the said city of Madison to market; that said highway being in such bad condition and carelessly and negligently out of repair, and the said city knowing the same to be out of repair, and the plaintiff having no knowledge of said ditch, and believing said highway to be in good repair, and while driving his wagon and team with care along the same, and without any fault or negligence on his part, the wagon, while in the corporate limits of the city, went into and upset in said ditch, thereby greatly injuring the plaintiff and his said daughter.
Two objections are urged to the sufficiency of the complaint First. That it is not sufficiently made to appear that the city had proper notice of the bad condition of the street. Second. That the facts averred are not sufficient to rebut the presumption of contributory negligence. The sufficiency of the complaint was not challenged in the court below. Hence, in legal effect, the only question upon the complaint now is, Is it sufficient to sustain the judgment after a verdict has been rendered upon it? The indirect and inferential averments, that the highway, within the corporate limits of the city and where...
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