Town of Argos v. Harley, 17061.
| Decision Date | 25 June 1943 |
| Docket Number | No. 17061.,17061. |
| Parties | TOWN OF ARGOS v. HARLEY et al. |
| Court | Indiana Appellate Court |
TOWN OF ARGOS
v.
HARLEY et al.
No. 17061.
Appellate Court of Indiana.
June 25, 1943.
Appeal from Kosciusko Circuit Court; John A. Sloane, Judge.
Action by Richard D. Harley, by Floyd E. Harley, his next friend, against the Town of Argos and others for injuries sustained in a fall on a sidewalk. From a judgment for plaintiff against named defendant, named defendant appeals.
Affirmed.
[49 N.E.2d 553]
Roland Obenchain, of South Bend, and Galeman Dexter, of Plymouth, for appellant.
Kitch & Huff, of Plymouth, for Alleman.
Albert B. Chipman, of Plymouth, and Brubaker & Rockhill, of Warsaw, for Harley.
CRUMPACKER, Presiding Judge.
Argos, Indiana, is an incorporated town of approximately 1,200 inhabitants located in Marshall County at the intersection of “Indiana U. S. Highway 31” and “State Road 10.” Its government rests largely in a Board of Trustees which, on the 29th day of May, 1940, consisted of Fred Helsel, Orval Tracy and Elda Sissel. Its main thoroughfare is known as Michigan Street which is an integral part of said “Indiana U. S. Highway 31” and courses in a slightly northwesterly and southeasterly direction through said town. Along the west side of Michigan Street and immediately south of “State Road 10” there are a number of store buildings, erected flush with the property line, in front of which a concrete sidewalk, approximately 15 feet wide, extends to the curb line. That part of the street used by vehicular traffic is paved with asphalt of a type commonly known as “blacktop.” On May 29, 1940,
[49 N.E.2d 554]
and for a number of years prior thereto, Charles D. Alleman owned one of the store buildings above described in which one Arnold Boggs conducted a business known as the “Candy Kitchen.” The building next on the south was occupied by Floyd E. Harley who operated a variety store on the first floor thereof and lived with his family, consisting of his wife and son Richard, immediately above. On said May 29, 1940, there was, and had been for two years immediately prior thereto, an iron pipe embedded in the sidewalk near the curb in front of the Alleman building. This pipe extended two or three inches above the surface of the sidewalk and on said day Richard Harley, then a boy eight years of age, tripped over the same and fell to the sidewalk thereby severely fracturing both bones in his left arm near the wrist. By his father, Floyd E. Harley, as his next friend, he brought this suit to recover damages resulting from such accident and named as defendants the appellant Town of Argos, the appellee Charles D. Alleman, in front of whose premises said pipe was located, and Fred Helsel, Orval Tracy and Elda Sissel, as the Board of Trustees of said town at the time of the accident, all of whom he charged with negligence in cutting off the metal pipe above described approximately three inches above the surface of the sidewalk, thereby creating a dangerous obstruction or defect in said sidewalk, which defect they permitted to remain for a long period of time without taking any precaution to protect pedestrians from its dangers. The record shows a court order abating the action as to the trustees concerning which no question is raised by this appeal. Trial was to a jury upon issues joined by an amended complaint and separate answers by the appellant Town of Argos and the appellee Charles D. Alleman. The verdict was for the appellee Richard D. Harley on his complaint against the Town of Argos in the sum of $2,500 and against him on his complaint against Alleman. Judgment was entered accordingly and the Town of Argos brings this appeal relying upon a single assignment of error: “The trial court erred in overruling the appellant's motion for a new trial.”
The appellant contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law because (1) the uncontradicted evidence discloses that at the time of the accident in controversy Michigan Street was in the exclusive control of the Indiana State Highway Commission and the appellant, having no control over the street, owed the appellee Harley no duty in reference thereto; (2) the release of the appellee Alleman exonerated the appellant of all liability in connection with the accident; and (3) the evidence discloses as a matter of law that the appellee Harley's own negligence contributed to his injury.
[1][2] The primary control of the public streets in a city or town in Indiana is vested in the state and any such powers and control over the same as municipalities may have are only such as have been delegated to them. Farmers', etc., Tel. Co. v. Boswell Tel. Co., 1918, 187 Ind. 371, 119 N.E. 513;Grand Trunk, etc., R. Co. v. City of South Bend, 1910, 174 Ind. 203, 89 N.E. 885, 91 N.E. 809, 36 L.R.A.,N.S., 850; City of Vincennes v. Vincennes Traction Co., 1918, 187 Ind. 498, 120 N. E. 27;State ex rel. v. Board, etc., 1908, 170 Ind. 595, 85 N.E. 513. It naturally follows that the power of the state to delegate control over streets to the municipalities in which they lie necessarily carries with it the power to withdraw such control any time the state deems it to the interest of the public to do so.
[3] Section 31, Clause 9 of the Cities and Towns Act of 1905 as amended provides as follows: “The board of town trustees shall have the following powers: * * * To lay out, open, change, pave and otherwise improve the streets, alleys, sewers, sidewalks and crossings of the town, and keep them in repair.” § 48-301 clause 9, Burns' 1933, § 11358, clause 9, Baldwin's 1934. Under this and other sections of the Cities and Towns Act of 1905, it has been held that municipalities have complete jurisdiction over all streets and public ways within their respective limits. City of Bloomington v. Chicago, etc., R. Co., 1913, 52 Ind.App. 510, 98 N.E. 188;City of Hammond v. Jahnke, 1912, 178 Ind. 177, 99 N.E. 39.
The appellant contends, however, that at the time of the accident involved in this litigation the control of its sidewalks, delegated to the Town of Argos by the provisions of the above Act had been withdrawn by the state and vested exclusively in the Indiana State Highway Commission and that “Where there is no power to control, there is no responsibility for a failure
[49 N.E.2d 555]
to repair, since the duty and its breach must concur, to produce a right of action.” Board of Commissioners of Owen County v. Washington Township, 1890, 121 Ind. 379, 23 N.E. 257;Gardner v. City of Covington, 1927, 86 Ind.App. 229, 156 N. E. 830. This contention is based primarily on § 36-116, Burns' 1933, § 8655, Baldwin's 1934, which provides as follows: “If any state highway connects at the corporate limits of any town having a population of not to exceed thirty-five hundred (3,500), as shown by the last preceding United States census, with an improved street of such town, the state highway commission shall select, mark and maintain the same as a part of such state highway.”
It is undisputed that long prior to the accident involved in this litigation “Indiana U. S. Highway 31” had been designated as a part of the state highway system and its control and maintenance assumed by the State Highway Commission under authority of the State Highway Commission Act of 1933. Acts 1933, Ch. 18, p. 67. It is also unquestioned that when said “Indiana U. S. Highway 31” was taken over by said Commission it connected at the appellant's corporate limits with the street upon which appellee Harley's accident occurred and that such street was then improved and the appellant was then an incorporated town of less than 3,500 inhabitants.
[4] A review of state highway legislation seems to indicate that the broad overall purpose of the legislature was to develop a general system of state highways to facilitate easy and safe communication between all parts of the state over roads built, improved and maintained by one authority in order that a long range master plan might be developed and carried into effect without interference by local units of government whose decisions and actions might not be in harmony therewith. That such a system could be integrated with similar systems in other states was recognized by the United States Government through legislation granting federal aid in promotion of a nation-wide network of modern highways constructed for the safe and easy movement of people and freight between all parts of the country.
It also seems clear, in historical perspective, that the legislature intended all state highway, outside the limits of municipal corporations, to be in the absolute and exclusive control and jurisdiction of the State Highway Commission, while in cities and in towns of over 3,500 inhabitants the matter of the control of streets which are a part of the state highway system seems to be divided between the Commission and the municipality as provided by § 36-2902 Burns' 1933, (Supp.), § 8696-1 Baldwin's Supp.1937, from which we quote as follows:
“Nothing in this section contained shall in any way annul, limit or abridge the right of any such city or town, either at its own expense or at the expense of property owners subject to assessment therefor, to improve the sidewalks and curbs along any such street forming the route of any such highway, and/or to construct sewers and drains therein, and/or to construct or maintain any portion of the roadway of such street not hereby required to be improved or maintained by said Commission. Such city or town shall provide adequate drainage for any such street. Excepting as herein expressly provided, nothing in this section contained shall in any way limit the right of any such city or town, to regulate traffic over any street therein over which such highway is routed or to relieve such city or town of any liability in reference thereto, now imposed upon it by law.”
Within the limits of towns of less than 3,500 people the extent of State Highway Commission control is not so clear but it is obvious that a system...
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