Weinstein v. The City of Terre Haute
| Decision Date | 30 April 1897 |
| Docket Number | 17,992 |
| Citation | 46 N.E. 1004,147 Ind. 556 |
| Parties | Weinstein v. The City of Terre Haute |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Affirmed.
J. D Early, T. H. Hite, J. T. Hays and S. R. Hamill, for appellant.
J. S Bays, G. E. Pugh, B. K. Elliott and W. F. Elliott, for appellee.
The appellant, who is a physician, was driving south on South Fourteenth street, an unimproved street in the city of Terre Haute, when the right front wheel of his buggy struck a hitching post and he was thrown out and severely injured. In the special verdict returned by the jury, the street was found to be fifty feet in width and the post to be located six and one-half feet east of the west line of the street. The post was three and one-half inches square and three and one-half feet high, with a ring in the top for hitching horses. At the time of the accident the post had been in place for about six years. On the east side of the street there was a little pool of mud and water about two inches deep, also some tin cans and other slight obstructions; but the jury found that the position of the post did not render the way along the street impassable; that there was room to pass without going against the post; that there was, between the post and the east fence, a space of twenty feet "over which one could have safely and securely driven with a buggy." There were at the time two traveled tracks along the street. The one most in use, and that along which appellant drove, was on the west side of the street, and ran within a foot of the post. Near by were some weeds, but not so high as the post, nor such as to obstruct it from the view of one going along the street. The time of the accident was between twelve and one o'clock on the afternoon of November 8, 1894. The day was clear and appellant's eyesight good. The jury find that one driving along there at the time, and looking where he was driving, could see the top of the post; but they find that appellant was then looking "immediately over his horse," and was not "looking to see where he was driving at the time he struck the hitching post." The edge of the pool of water was about nine feet from the post, and as the horse approached that point he shied from the water, and so caused the buggy wheel to strike the post, and thus brought about the injury to appellant.
Many other findings are made by the jury, but we think we have stated all that are material to show how the accident was brought about. Counsel for appellant contend that the facts found show that he was injured without his own fault and solely by reason of the negligence of the city.
The negligence charged against the city is, that it suffered the hitching post in question to be placed and to remain where appellant's buggy came in contact with it. The post was set within six and one-half feet of the property line, that is, within the space usually allowed for a sidewalk on a street of this width. The findings show that the city, in preparing for the improvement of this street, had adopted plans and specifications which provided for a roadway thirty feet in width, with sidewalks each ten feet wide. Had the work been completed at the time of the accident this hitching post would, therefore, have been within the sidewalk and three feet and a half from the edge of the roadway. It would seem, consequently, that if any hitching post were permissible anywhere along either side of the street, the post in question could not be considered as improperly located. Certainly, however, a hitching post properly located cannot be held to be an unlawful obstruction in a street. Instead of being looked upon as an obstruction, it must rather be regarded as an accommodation to public travel.
Of course, a post may be so set in a street as to become an unlawful obstruction. Such was that in the case of Town of Fowler v. Linquist, 138 Ind 566, 37 N.E. 133, cited by appellant. There, a fence had been unlawfully built across a street, and when it was afterwards removed one of the fence posts was left out in the street. There was no claim that the post stood at the edge of the sidewalk or that it was left for a hitching post or for any other lawful...
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