The City of New Albany v. McCulloch
| Decision Date | 20 March 1891 |
| Docket Number | 14,791 |
| Citation | 26 N.E. 1074,127 Ind. 500 |
| Parties | The City of New Albany v. McCulloch |
| Court | Indiana Supreme Court |
From the Floyd Circuit Court.
Judgment affirmed.
C. D Kelso, for appellant.
A Dowling, for appellee.
This was an action by the appellee against the appellant instituted in the Floyd Circuit Court, to recover damages on account of personal injuries sustained by the appellee by reason of a defective sidewalk.
The complaint alleges, among other things, that, on the 29th day of January, 1887, a certain street in the city of New Albany, commonly called State street, was much travelled and used by the citizens of said city, and the public generally, as a public highway; that all that part of said street between Cherry street and the line of Monroe street was constructed on an embankment and fill, from twelve to fifteen feet high; that said city constructed, and, for more than ten years immediately preceding said day, had maintained a board walk or pavement on and along the east side of said embankment and fill between said Cherry street and the line of Monroe street, said board walk being intended for the use of, and being used by, foot passengers travelling along said street; that said walk was, by the appellant, negligently allowed to become out of repair, decayed, weak and unsafe for use; that the appellant had notice of the unsafe and decayed condition of the said walk for more than one month before the date first above named, but failed and neglected to improve and repair the same, and make it safe for use and travel; that, on the said 29th day of January, 1887, in the night-time, the appellee was lawfully travelling on said street, and by reason of the weak, decayed and unsafe condition of the said board walk on, over and along which the appellee was then and there carefully walking, the same broke and gave way under his weight, and he was, without fault on his part, precipitated down the said embankment, said walk and the timbers thereof falling upon him, by reason of which he suffered certain described serious and permanent injuries.
To this complaint the court overruled a demurrer, and the appellant excepted.
The appellant thereupon filed an answer in three paragraphs. The court, on motion, struck out the second paragraph of the answer, and also sustained a demurrer to the third, and the appellant excepted.
A trial of the cause by jury resulted in a verdict for the appellee, upon which the court, over a motion for a new trial, rendered judgment.
The first question presented for our consideration under the assignment of error relates to the sufficiency of the above complaint.
In our opinion the complaint states a cause of action against the appellant and in favor of the appellee. City of Lafayette v. Weaver, 92 Ind. 477; City of Washington v. Small, 86 Ind. 462.
In the case last cited it was held that a complaint against a city to recover for an injury in consequence of a defective sidewalk, which alleged that the sidewalk had been negligently left out of repair and dangerous for two months, of which the city had notice; that when walked upon it tipped, because its supports had been washed away, in consequence of which the plaintiff, in passing, without fault, and being ignorant of danger, slipped and fell, sustaining injuries, stated a cause of action. A city is bound to use active vigilance to discover and repair defects in its streets and sidewalks, while the traveller is bound to use ordinary care to avoid injury.
The objection urged by the appellant to this complaint is that it does not contain any allegation that proper signals of the dangerous condition of the sidewalk were negligently omitted to be placed so as to warn travellers of its dangerous condition.
Under the case made by the complaint in this case we do not think any such allegation was necessary. The court did not err, in our opinion, in overruling the demurrer of the appellant to the complaint in this cause.
The second paragraph of the answer averred that the appellee knew the defective condition of the sidewalk described in his complaint, and that, notwithstanding such knowledge, he voluntarily, and of his own free will, ventured to travel on the same, and assumed the risk of his journey thereon.
There was no error committed by the court in striking out this answer. All the matters therein averred were admissible under the general denial which was pleaded, and the appellant, for that reason, was not injured by the ruling of the circuit court. Ketcham v. Brazil, etc., Coal Co., 88 Ind. 515; Boyce v. Graham, 91 Ind. 420.
The third paragraph of the answer avers that the city of New Albany is a municipal corporation of the State, having a population of less than twenty thousand, as ascertained by the last census taken by the United States; that its fiscal year began on the 1st day of June, 1886, and ended on the 31st day of May, 1887; that its council determined that nine-tenths of one per cent. of the ad valorem tax would be sufficient to raise money enough to meet and discharge all current expenses and obligations that might accrue during that fiscal year; that on the 29th day of January, 1887, and for more than five years previous thereto, the city was indebted, evidenced by bonds, notes and other obligations, theretofore issued and negotiated by it, to an amount of over $ 400,000, which indebtedness largely exceeds two per centum of the value of the taxable property of said city; that for more than one month prior to appellee's injury appellant had caused to be expended, and had anticipated, its general purpose funds in improving and maintaining its streets, alleys, bridges, sewers, its fire department, and other departments of municipal government, and for more than one month prior to the 29th day of January, 1887, it had no funds available at its disposal, or within its control, which would have enabled it to repair and replace the sidewalk mentioned in the complaint, and put the same in a safe and passable condition.
Section 1, article 13, of our State Constitution provides that "No political or municipal corporation in this State shall ever become indebted, in any manner or for any purpose to an amount, in the aggregate exceeding two per centum on the...
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