Town of Williamsport v. Smith

• Decision Date: 12 June 1891
• Parties: Town of Williamsport v. Smith.
• Court: Indiana Appellate Court

2 Ind.App. 360

28 N.E. 156

Town of Williamsport

v.Smith.¹

Appellate Court of Indiana.

June 12, 1891.

Appeal from circuit court, Tippecanoe county; B. W. Langdon, Judge.J. W. Stutton, for appellant. James McCabe & Son, for appellee.

BLACK, J.

The appellant's demurrer to the appellee's complaint was overruled. The complaint, omitting the title, was as follows: “Plaintiff complains of defendant, the town of Williamsport, Warren county, Indiana, a municipal corporation organized under the laws of the state of Indiana, and says that on the --- day of January, 1886, he was the owner of two horses of the value of two hundred dollars, one of them being worth the sum of one hundred and ten dollars, and the other the sum of ninety dollars; that on said day one Alonzo Meek, with whom plaintiff was engaged in the business of hauling saw-logs, was driving said team of plaintiff's, together with a team belonging to said Meek, hitched together as a four-horse team, hauling a saw-log, one end of which was fastened upon a sled, and the other end of which log slid upon the ground; that said highway was the only road leading from the country north-west of said town to a steam saw-mill, which was located in said town, and had been so located for more than twenty-five years, and during all that time used as a saw-mill for sawing logs into lumber; and the usual and customary method of hauling logs to said mill during all of said time, whenever there was sufficient snow, was in the manner and mode aforesaid, and said mode of traveling and using said highway was ordinary and customary; that said Meek, on said day, hauling said log, was driving along Monroe street, within the corporate limits of said town; that on said Monroe street at that time there was a bridge, and embankment approaching same, within the corporate limits of said town, built by said town over Fall Creek branch, over which it was necessary to pass to travel said street; that the approach to said bridge from the north-west side was said approach, which was a steep embankment of earth fifteen feet high, so that a horse would fall if shoved over the same; that said embankment was not straight, but curved towards the left-hand side in approaching said bridge from the north-west side; that said embankment narrowed as it approached said bridge, and was at said time only ten feet wide at the point where it joined said bridge; that the surface of said embankment, as it led to said bridge, was...