Wabash Cnty. v. Pearson

• Decision Date: 09 October 1889
• Parties: Wabash County v. Pearson.
• Court: Indiana Supreme Court

120 Ind. 426

22 N.E. 134

Wabash County

v.Pearson.¹

Supreme Court of Indiana.

Oct. 9, 1889.

Appeal from circuit court, Huntington county, M. Winfield, Special Judge.

Action by Ephriam Pearson against the board of commissioners of Wabash county, for injuries alleged to have been sustained from a defective bridge. Judgment for plaintiff. Defendant appeals.

Warren B. Sayre, H. B. Shively, and Kenner & Dille, for appellant. Hutchins, Farrar & Branyan, for appellee.

Elliott, C. J.

The appellee's complaint is in three paragraphs, and charges the appellant with having negligently failed to keep a public bridge safe for travel. Our decisions settle the question of the liability of counties for a negligent breach of duty respecting public bridges, but they do not hold, by any means, that a county is to be regarded as an insurer of the safety of those structures. If ordinary care is exercised in constructing and maintaining the bridges, there can be no liability. State v. Demaree, 80 Ind. 519, and cases cited; Patton v. Board, 96 Ind. 131;Board v. Legg, 110 Ind. 479, 11 N. E. Rep. 612. The fact that a bridge gives way, and a traveler is injured, is not of itself sufficient to charge the county, for it must appear that the county authorities were guilty of actionable negligence. Board v. Dombke, 94 Ind. 72. The question, therefore, which is presented by the ruling on the demurrer to the several paragraphs of the complaint is, does each of them sufficiently show that there was a negligent breach of duty?

The objection urged against the first paragraph of the complaint is that the fact that the bridge was safely used for 13 years overcomes the statement that it was negligently constructed of unsafe and unsuitable materials, but in our judgment this objection cannot prevail. The direct statements of the pleading overcome the inference which the appellant draws from the mere isolated evidentiary fact which is found among others in the complaint.

The appellee's cause of action did not accrue until he was injured, and, although the defendant's negligence runs back to 1871, the action is not barred by the statute of limitations. The two elements of the appellee's cause of action are the legal injury and the resulting damages. City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. Rep. 821. The statute did not begin to run until the right of action accrued, and this did not accrue until the two elements came into existence. There is, therefore, no force in the argument that the acts of negligence were committed in 1871, and that the statute then commenced to run, not withstanding the fact that the appellee was not injured until 1884.

The facts pleaded show that the appellee's injury was the proximate result of the appellant's wrong, and this is sufficient without a direct averment. Railway Co. v. Thompson, 107 Ind. 442, 8 N. E. Rep. 18, and 9 N. E. Rep. 357; Railway Co. v. Wood, 113 Ind. 544, 14 N. E. Rep. 572, and 16 N. E. Rep. 197.

In the second paragraph of the complaint it is averred that the appellant negligently constructed the bridge of unsafe and unsuitable material, and it thus appears that the appellant itself was the wrong-doer, so that the case does not fall within the rule that a public corporation cannot be liable for suffering a bridge or highway to become unsafe, unless it has notice of the defect. If the original wrong is that of the corporation itself, and is of such a nature that it endangers the safety of travelers, it is not necessary to allege that it had notice of the unsafe condition of the bridge or highway. If the negligence is in the construction of the highway or bridge, then it is not necessary to aver notice. Board v. Bacon, 96 Ind. 32. It must, of course, be appropriately shown that ordinary care was not exercised, and, where negligence is averred, this is shown.

The allegation in the second paragraph that the bridge had not been inspected by a qualified inspector may be conceded to be without force, and still the paragraph upheld, for, if this allegation be entirely rejected, there still remain facts sufficient to constitute a cause of action. It is unnecessary, therefore, to consider the effect of this allegation, although we are inclined to the opinion that it adds nothing to the complaint.

The attack on the third paragraph of the complaint cannot be maintained. If a public corporation knows that a bridge or highway is unsafe because of the need of repairs, and it undertakes to repair it, it must exercise...