Travis v. Rochester Bridge Company
| Citation | 122 N.E. 1,188 Ind. 79 |
| Decision Date | 20 February 1919 |
| Docket Number | 23,549 |
| Parties | Travis, Administratrix, v. Rochester Bridge Company |
| Court | Indiana Supreme Court |
From Marshall Circuit Court; William B. Hess, Special Judge.
Action by Cenia Travis, administratrix of the estate of her deceased husband, Harry Travis, against the Rochester Bridge Company. From a judgment sustaining a demurrer to the amended complaint, the plaintiff appeals. (Transferred from the Appellate Court under Acts 1901 p. 565, § 1394 Burns 1914.)
Affirmed.
Frank E. Osborn, W. A. McVey and Lee L. Osborn, for appellant.
George W. Holman, Harry Bernetha and Frank E. Bryant, for appellee.
It appears from the amended complaint in this case that Harry Travis was killed by the falling of a bridge constructed by appellee on a public highway under contract with the board of commissioners of LaPorte county. Appellant, as his administratrix, brought this action against appellee to recover damages resulting from his death, basing her right to recover on the negligence of appellee in the construction of the bridge. The trial court sustained a demurrer addressed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This ruling is assigned as error, and presents the only question to be considered on appeal.
The complaint shows that appellee as contractor constructed the bridge in question under a contract with the board of commissioners of LaPorte county in the year 1905, and that on August 27, 1910, while appellant's decedent was crossing it with a traction engine, it gave way and fell, causing injuries which resulted in his death. It is alleged that the bridge was constructed on stone abutments on each side of the stream with a floor beam in the center thereof supported by certain trussrods, and that iron stringers were laid from the stone abutments on each side with the other ends meeting and resting on the floor beam. It is charged that appellee was negligent in failing to fasten the ends of the stringers to the floor beam and to other parts of the bridge and to each other, and that by reason of such negligent failure and omission the stringers crept and shifted from the vibrations of the bridge and finally fell from the floor beam, causing the floor of the bridge resting thereon to fall. It is further alleged that the defective and dangerous condition of the bridge was known to appellee, and that they were not known to appellant's decedent for the reason that the floor of the bridge concealed such condition from him and the public generally.
In determining the question presented by the assignment of error this court is required to decide whether or not a duty rested on appellee to use care in the construction of the bridge in favor of travelers on the highway who might use the bridge. If a duty rested on appellee to use care to protect that class of persons from injury, such duty may be asserted in behalf of appellant's decedent, and an action based on the failure to discharge the duty thus imposed. On the other hand, if the law under the facts stated imposed no duty on the contractor to use care for the safety of those who might use the bridge in traveling on the highway then no negligence could be charged in favor of appellant's decedent.
In the construction of bridges by the county as a part of the public highways the primary duty to make them safe for the use of the public rests on the county, and the fact that the legislature in this state has not imposed a liability on counties for the breach of such duty does not in any sense divest the county of such primary obligation as between it and independent contractors. At the time the contract for the building of the bridge was let to appellee by the board of commissioners of LaPorte county, the statute required that such contract should be let pursuant to notice and in accordance with a survey, profile and general plan which the statute required to be deposited with the county auditor for two weeks prior to the time the contract was let. Acts 1899 p. 170, § 5590 et seq. Burns 1901.
The bridge did not give way and fall until about five years after it was constructed, during which time it was used by the public. The fact, as appears from the complaint, that it was thrown open to the public and used for such length of time shows an acceptance by the county. The complaint does not allege that any fraud or deception was practiced by the contractor in procuring an acceptance of the bridge by the county, or that the defect was intentionally concealed so as to prevent its discovery by a proper inspection. Under such a state of facts, the liability of the contractor to the general public and persons not parties to the contract terminated at the time the bridge was accepted as completed and thrown open to the use of the public. Such act on the part of the county amounted to an intervention of an independent human agency which had the effect of breaking the chain of causation between any negligence of the contractor and an injury which might occur after acceptance. After acceptance of the bridge by the county, the traveler might rightly repose confidence in the county to the extent of believing that it had exercised reasonable care to provide a safe bridge for his use, but he had no right to repose such confidence in the contractor who built the bridge. Daugherty v. Herzog (1896), 145 Ind. 255, 44 N.E. 457, 32 L. R. A. 837, 57 Am. St. 204.
The rule thus announced applies to all cases where an independent contractor constructs a building, bridge, or other structure under contract with an individual or corporation, in the absence of a showing that such fraud, deceit or intentional concealment of defects was practiced by the contractor in obtaining the acceptance as to render such acceptance ineffectual. Wharton, Negligence (2d ed.) § 438. Curtin v. Somerset (1891), 140 Pa. 70, 21 A. 244, 12 L. R. A. 322, 23 Am. St. 220; Burdick v Cheadle (1875), 26 Ohio St. 393, 20 Am. Rep. 767.
In the case of Casey v. Wrought Iron Bridge Co. (1905), 114 Mo.App. 47, 89 S.W. 330, the contractor was held liable for negligence in the construction of a bridge to a person who was injured by the bridge falling a short time after it was accepted, on the ground that the contractor knew of the defects and knew that the bridge...
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