Travis v. Rochester Bridge Co.

• Decision Date: 19 February 1918
• Docket Number: No. 9310.,9310.
• Parties: TRAVIS v. ROCHESTER BRIDGE CO.
• Court: Indiana Appellate Court

118 N.E. 694

TRAVIS

v.ROCHESTER BRIDGE CO.

No. 9310.

Appellate Court of Indiana, Division No. 2.

Feb. 19, 1918.

Appeal from Circuit Court, Marshall County; Wm. B. Hess, Special Judge.

Action by Cenia Travis, administratrix of the estate of Harry Travis, against the Rochester Bridge Company. Demurrer was sustained to each paragraph of complaint, and plaintiff appeals. Reversed, with instructions to overrule the demurrer and for further proceedings not inconsistent with the opinion.

Frank E. Osborn, W. A. McVey, Lee L. Osborn, and Kenneth D. Osborn, all of La Porte, for appellant. Holman, Bernetha & Bryant, of Rochester, for appellee.

IBACH, C. J.

[1][2][3] The question presented for decision in this appeal is the sufficiency of the amended complaint to show a right of recovery against appellee. The amended complaint is in two paragraphs, the facts in the first, so far as they relate to the points raised, are the following: On July 24, 1905, the defendant, a corporation, entered into a contract with the county of La Porte, by and through its board of commissioners, by which it undertook and agreed to and did construct for said county an iron bridge over one of the streams on a certain public highway in said county, which highway for the last 20 years and at the time of the injuries here complained of was used as a public highway for travel by the citizens and general public. The bridge was constructed upon stone abutments on each side of the stream, with a floor beam in the center thereof, supported by certain truss rods, upon which iron stringers were laid for the purpose of and were used to support the floor of said bridge. Defendant carelessly and negligently constructed said bridge so that it was unsafe for the use for which it was so constructed, namely, for travel by the public along said highway and across said stream in this, that in the placing of the stringers of said bridge upon said floor beam and abutments, two of said stringers were placed with an end of each abutting each other and with said abutting ends resting on the floor beam. Defendant carelessly and negligently failed and omitted to properly and securely fasten said stringers to the floor beam and the other parts of the bridge to each other, and the failure to fasten said stringers as aforesaid caused and permitted said stringers to move and creep on said floor beam, and to finally fall therefrom by reason of the jarring and vibration of the bridge when it was traveled upon by teams and vehicles and other modes of travel. On August 27, 1910, while appellant's decedent, as a member of the traveling public was upon it in the act of crossing said bridge, by reason of the said careless and negligent manner in which it had been constructed as aforesaid, gave way and broke down, and allowed and caused the traction engine upon which decedent was riding to be thrown from said bridge and upon the decedent in such a way as to injure him, from which injuries he died the same day. The defects in said bridge and in the construction thereof were unknown to decedent, and were hidden and concealed from him and from the public generally, who used the highway and bridge by the flooring placed on said bridge by the defendant. The said defective construction of said bridge as hereinbefore alleged was known to defendant. The second paragraph of complaint is substantially the same as the first, except that it seeks to charge appellee with constructive knowledge of the alleged defective construction.

“The rule is that an action for negligence will not lie unless the defendant was under some duty to the injured party at the time and place where the injury occurred which he has omitted to perform.” Daugherty v. Herzog, 145 Ind. 255, 256, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204, and cases cited.

“Negligence which consists merely in the breach of a contract will not afford ground for an action by any one, except a party to the contract, or a person for whose benefit the contract was avowedly made.” 1 Shearman & Redf. Neg. (6th Ed.) § 116.

The law, however, seems to be in accord that:

“One may owe two distinct duties in respect to the same thing, one of a special character to one person, growing out of special relations to him; and another, of a general character, to those who would necessarily be exposed to risk and danger from the negligent discharge of such duty.” O'Brien v. American Bridge Co., 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. (N. S.) 980, 984, 136 Am. St. Rep. 503;Moon v. Northern Pac. R. Co., 46 Minn. 106, 48 N. W. 679, 24 Am. St. Rep. 194;Casey v. Wrought Iron Bridge Co., 114 Mo. App. 47, 89 S. W. 330;Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455.

If appellee failed to construct the bridge in conformity with its contract, it was liable to respond in damages therefor to the other contracting party. But is it also liable to appellant for the death of her husband, sustained on account of the defective construction alleged, when neither appellant nor her husband were parties to the contract?

Appellee claims in effect that it occupies the situation of an independent contractor who has completed his contract, turned over the work to the owner, and the same was accepted by it. It has no contractual relation with either appellant or her deceased husband, and owed them no contractual duty. The general rule in such cases may be stated as follows: Where an independent contractor is employed to construct or install any given work or instrumentality, has constructed or installed the same, the same has been received and accepted by the employer, and the contractor has been discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation. Daugherty v. Herzog, supra; McCrorey v. Thomas, 109 Va. 373, 63 S. E. 1011, 17 Ann. Cas. 373;Thornton v. Dow, 60 Wash. 622, 111 Pac. 899, 32 L. R. A. (N. S.) 968;Albany v. Cunliff, 2 N. Y. 165;First Presb. Congregation v. Smith, 163 Pa. 561, 30 Atl. 279, 26 L. R. A. 504, 43 Am. St. Rep. 808; 16 Am. & Enc. Law (2d Ed.) p. 209.

“Certain exceptions to the general rule, above stated, exist, and they may be divided into two general classes, viz.: (1) Those where the thing dealt with is imminently dangerous in kind; and (2) those where the thing dealt with is not imminently dangerous in kind, but is rendered dangerous by defect.” Wood v. Sloan, 20 N. M. 127, 148 Pac. 507, L. R. A. 1915E, pp. 766, 769.

The classification of these exceptions is not always stated in the same language by the various courts, but the existence of such exceptions is well recognized. O'Brien v. American Bridge Co., supra; Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303;Heizer v. Kingsland, etc., Mfg. Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 482;O'Neill v. James, 138 Mich. 567, 101 N. W. 828, 68 L. R. A. 342, 110 Am. St. Rep. 321, 5 Ann. Cas. 177;MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696;Casey v. Wrought Iron Bridge Co., 114 Mo. App. 47, 89 S. W. 330;Laudeman v. Russell & Co., 46 Ind. App. 32, 91 N. E. 822, and cases cited.

It is not claimed by appellant that there is a liability under the contract, but it is claimed that the case comes within the rule that one who sells or delivers an article which he knows to be imminently dangerous to the life or limb of another without notice of its qualities is liable to any person who suffers any injury therefrom, which might have been reasonably anticipated whether there was any contractual relation or not, citing Laudeman v. Russell & Co., 46 Ind. App. 32, 91 N. E. 822;Flint, etc.,...