Westfield Gas & Milling Co. v. Abernathey

• Decision Date: 09 November 1893
• Citation: 8 Ind.App. 73,35 N.E. 399
• Parties: WESTFIELD GAS & MILLING CO. et al. v. ABERNATHEY.
• Court: Indiana Appellate Court

8 Ind.App. 73

35 N.E. 399

WESTFIELD GAS & MILLING CO. et al.

v.ABERNATHEY.

Appellate Court of Indiana.

Nov. 9, 1893.

Appeal from circuit court, Hamilton county; D. Moss, Judge.

Action by Marion Abernathey against the Westfield Gas & Milling Company and others to recover damages for injuries sustained in consequence of an excavation along a highway. From a judgment for plaintiff, defendants appeal. Modified.

Ross, J., dissenting.

Kane & Davis and Wm. Garver, for appellants. Jas. A. Roberts and Fertig & Alexander, for appellee.

LOTZ, J.

The complaint in this case, in some respects, is a peculiar one. Its sufficiency is not questioned in this court. We call attention to its averments for the purpose of aiding in the interpretation of the verdict rendered upon it. Omitting the formal parts, it is as follows: “The plaintiff, for his amended complaint in said cause, says that the defendant the Noblesville & Eagletown Gravel-Road Company was on the 2d day of January, 1889, and had been continuously for the several years last past, owning, controlling, and operating a turnpike or gravel road leading from the town of Noblesville to the town of Westfield, in said county of Hamilton, in the state of Indiana; that during the month of December, in the year 1888, the defendants negligently constructed and excavated an open ditch nearly two feet in depth and fifteen inches in width, and more than one mile in length, along and in said gravel road, and near the beaten track in said road, and running said distance nearly parallel with said beaten track; that the defendants carelessly and negligently permitted said ditch to remain open and unguarded for an unreasonable length of time next before and at the time of the happening of the injury herein complained of; that on the said 2d day of January, 1889, the plaintiff was traveling over and along said gravel road in a buggy; that the horse attached to the buggy, although of a gentle disposition, without any fault or negligence on the part of the plaintiff, or the driver of said horse, became frightened, and shied from the beaten track in said road; that while endeavoring to keep said horse from overturning the buggy, and without any fault or negligence on the part of the plaintiff, plaintiff and said horse were precipitated into and over said ditch, whereby plaintiff's shoulder was dislocated, and he was severely and permanently injured, and has since said time suffered much pain and anguish from said injury; that said injury occurred by reason of said ditch being so constructed in said highway, and being open and unguarded.” The defendant the Noblesville & Eagletown Gravel-Road Company filed an answer of general denial. All the other defendants joined in an answer of general denial. The cause was submitted to a jury for trial, and a verdict returned in favor of the plaintiff, in the words and figures following, to wit: “We, the jury, find for the plaintiff, and assess his damages at fifteen hundred dollars, ($1,500;) the Westfield Gas & Milling Company to pay nine hundred dollars, ($900,) and the Noblesville & Eagletown Gravel-Road Company to pay six hundred dollars, ($600.) William Holland, Foreman.” The plaintiff moved for a judgment in his favor for $1,500 on the verdict, and against all of the defendants. Pending a ruling on this motion, the defendants, except the gravel-road company, filed a joint and several motion for a new trial. This motion was overruled. The Westfield Gas & Milling Company then separately moved the court in arrest of judgment. This motion was overruled. The defendants William G. Pierce, John D. Edwards, Mahlon Perry, Aaron Harris, John L. Moore, Nathan E. Mills, Arlington L. Benford, and Orpheus E. Talbert then jointly and severally moved the court in arrest of judgment against them. This motion was overruled. The Westfield Gas & Milling Company separately moved the court in arrest of judgment, except as to $900 and costs, and this motion was overruled. The defendant the gravel-road company then separately moved the court for a new trial, which motion was overruled. The court then sustained the plaintiff's motion for judgment on the verdict, and rendered judgment against all the defendants in the sum of $1,500. The appellants excepted to these various adverse rulings, and have assigned each of them as error in this court. No motion for a venire de novo, or to modify the judgment, was made.

The verdict above set out is a general one. A general verdict, when perfect, covers all the issues in the case. It becomes important to ascertain what issues were joined by the pleadings, and which the jury was required to determine. There are two acts stated in the complaint which are charged to have been negligently done by the defendants: (1) “Constructed and excavated an open ditch, near two feet in depth and fifteen inches in width, and more than one mile in length, along in said gravel road, and near the beaten track in said road;” and (2) “permitted said ditch to remain open and unguarded for an unreasonable length of time.”

A highway is a way open to the use of all the people of the state. The right to preclude the citizens of the state from traveling thereon, unless they comply with certain conditions, is a high privilege, and cannot be exercised without assuming corresponding obligations. “The consideration for the right to exact toll is the undertaking of the owner of the road to maintain it in a reasonably safe and convenient condition for travel.” Elliott, Roads & S. 68. If the owner of such road create an unauthorized obstruction or excavation therein, or knowingly permit the same to be done, or fails to remove the same after notice thereof, or if any person, without authority, create or make such obstruction, he is liable to the traveler who sustains an injury resulting therefrom, when without fault. In such cases, it is not a question of negligence, but the wrong consists in creating or continuing a nuisance. And the same is true of such an excavation made so near a highway as to render it dangerous to the traveler. Irvine v. Wood, 51 N. Y. 224; Wood, Nuis. § 266. The liability, in such instances, does not spring from the manner in which the obstruction is made or guarded, but from its noxious character. But every excavation made in or near a street or highway is not a nuisance. They are often lawfully made. When lawfully made, and properly guarded, no action will lie for an injury resulting. The duty of a corporation, which owns and controls a toll road, to keep it reasonably safe for those who travel thereon, is one imposed upon it by law; and it is liable to the traveler who is injured without his fault, whether the defect or excavation was made with or without its consent, or whether such excavation is in or so near its line as to render it dangerous to the traveler. It is sufficient to charge the company with liability if it had notice of such defect, or if the defect has existed such a length of time as, by the exercise of diligence, it could have known of it. Moak, Underh. Torts, 230; City of Delphi v. Lowery, 74 Ind. 520;City of Crawfordsville v. Smith, 79 Ind. 308. It is also the law that persons who lawfully make excavations within or near the line of a highway, and leave them unguarded, are liable for an injury resulting to a person who is without fault. Improvement Co. v. Teter, 1 Ind. App. 322, 27 N. E. Rep. 635; Graves v. Thomas, 95 Ind. 361; Wood, Nuis. (2d Ed.) § 266; City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. Rep. 155; Stratton v. Staples, 59 Me. 94;Barnes v. Ward, 9 C. B. 392; Bishop v. Trustees, 28 Law J. Q. B. 215.

The complaint charges that the ditch was negligently constructed. Negligence is always unlawful, but, as an excavation may be lawful, the word “negligence,” as here used, relates to the manner in which the excavation was made, and not to the excavation itself. A lawful excavation, properly guarded, can give rise to no cause of action; but improperly or negligently guarded, and an action may arise. The evident purpose of the pleader, here, is to charge that the actionable negligence consisted in carelessly permitting the ditch to remain open and unguarded for an unreasonable length of time. We have alluded to these principles for the purpose of calling attention to the gravamen of the complaint. As the law imposed the duty upon all persons who were instrumental in making the excavation to securely guard it, and protect the traveler against injury, it is this duty that the complaint charges the defendants with having violated, and this is the gist of the action. What is said in the complaint with reference to the construction of the ditch is matter of inducement, merely introductory to the essential grounds of the complaint. The legal duty of guarding the excavation rested upon the defendants, either severally or jointly. The negligent act charged against the defendants, and which constitutes the cause of action, is one of omission, and not of commission. It is true that the act is a tort, but not of the aggravated kind. It is within the sphere of the law to attach the kind of liability to a given act. The law may say of the liability that it shall be joint or several, or joint and several. But the law cannot make a fact. When an act is jointly done by two or more persons, volition, intention, and concurrence of the minds of the actors are necessary concomitants. Persons who have jointly committed one and the same wrong may be sued jointly or severally, and, whether sued jointly or severally. their liability is always several. “The action may be against all or any member of them. Separate actions may be prosecuted at the same time against the respective parties charged with the same wrong, and separate verdicts and judgments taken against them, whether for the same or different amounts, though the plaintiff can have but one satisfaction; but, whether the judgment be joint or several,...