Wickwire v. The Town of Angola
| Decision Date | 29 March 1892 |
| Docket Number | 343 |
| Citation | 30 N.E. 917,4 Ind.App. 253 |
| Parties | WICKWIRE ET AL. v. THE TOWN OF ANGOLA |
| Court | Indiana Appellate Court |
From the Steuben Circuit Court.
Judgment affirmed.
R. W McBride, for appellants.
J. A Woodhull and W. M. Brown, for appellee.
The town of Angola sued William and George R. Wickwire to recover a sum of money it had been compelled to pay one Swift for damages for an injury he received on account of a defect in the sidewalk in front of the defendants' business lot in said town.
The complaint is in three paragraphs, the first of which charges in substance, that the defendants owned a lot in said town abutting upon one of the public streets, and upon which was a business building; that they wrongfully, and without the consent of said town, made and maintained an excavation in the sidewalk in front of said building, to be used in connection therewith, and carelessly and negligently failed to keep such excavation securely covered and safely guarded, and on the 29th day of June, 1889, while said excavation was in such unprotected condition, one Swift, while lawfully travelling upon said sidewalk, fell into such excavation and was injured; that said Swift sued the town for damages resulting from such injury, and the town duly notified the defendants herein of such action and requested them to defend the same, and in pursuance of such notice they did appear to and assist in the defence of said action; that said Swift recovered a judgment against the town for the sum of $ 319.30, which it has been compelled to pay. Wherefore judgment is prayed.
The second paragraph is the same, in substance, as the first, except it avers that the excavation was made and maintained for the purpose of gaining access and admitting light and air to the basement under said building, and for the defendants' sole use and benefit, and it does not aver that it was maintained without the consent of the town.
The third paragraph, in its legal aspect, is the same as the second. An answer was filed, consisting of four paragraphs, the first of which was the general denial.
It is alleged in the second paragraph that in 1879, the town, by an ordinance duly passed and adopted, required the street and sidewalk in front of defendants' building to be graded, paved and planked, and in pursuance of such ordinance, and in accordance with its specifications, the defendants built a substantial plank walk along their said lot, except in front of the door to the entrance of the building, where they placed a flagstone, which served as part of the sidewalk and a step to the entrance of the building; that said stone was placed on a secure foundation; but in 1889, partly on account of decay, and partly on account of a rain storm of unusual severity, such foundation gave way, and one side of said stone was thrown downward in such a manner that it rendered the walk dangerous; and the defendants, with the knowledge and consent of the officers of the town, removed said stone, thus leaving an opening, or cavity, in said walk, in which said Swift received the injury for which he recovered judgment; that said opening or cavity was not made to gain access or admit light and air to any part of said building, nor was it caused by the act or omission of the defendants, but by removing said flagstone, and in no other manner.
It is alleged in the third paragraph that there was a brick business building upon the defendants' said lot, erected by a prior owner and a remote grantor of the defendants, and such owner, at the time of the construction of said building, by and with the consent of the town, excavated an area in the sidewalk along the side of said building twenty feet long, four feet wide and six feet deep for the purpose of gaining access to the basement thereof, and they constructed a secure and substantial iron railing around said area, except for the distance of six feet, which was covered with a good substantial flagstone; that such flagstone formed part of the sidewalk which was built by said prior owner under an ordinance of said town; that said area in said sidewalk was protected and covered, as aforesaid, at the time defendants became the owners of said lot, and the same was in a secure and safe condition, and so remained until in 1889, when, by reason of a rainstorm of unusual severity, the foundation walls under said flagstone became weakened and undermined, thus precipitating one side of said stone in the area below, thereby causing the other side to be correspondingly elevated, thus forming a dangerous obstruction in the walk, whereupon defendants, with the knowledge and consent of the town, and with the assistance of its marshal, removed said stone from its dangerous position, thereby leaving the area uncovered, which the town carelessly continued to leave uncovered and unguarded for three weeks, and until said Swift was injured therein; that said injury occurred from the falling and removal of the stone from the sidewalk and not from the area beneath it.
The fourth paragraph is the same as the third, except it alleges the construction of the area by a prior owner and the placing of the stone over that part in front of the entrance into the building; that it was not done by or for the benefit of the defendants, and they received no benefit from that part of the area, and did not use it; that they assisted in defending the suit of Swift against the town only as taxpayers.
A separate demurrer, filed to each paragraph of answer except the first, was sustained by the court, and the defendants excepted and refused to further plead. They then withdrew the first paragraph and judgment was rendered upon the complaint in favor of the town for the full amount of the claim. From such judgment the defendants appeal, and assign the rulings upon the demurrer to the answer for error.
It is quite apparent that all of the facts contained in the second paragraph of answer were provable under the general denial, which had not been withdrawn at the time of the ruling upon the demurrer. This being true, the decision of the court sustaining the demurrer to such paragraph was harmless and not reversible, if it were conceded to be erroneous. One against whom a harmless ruling has been made can not voluntarily change the issues so that it shall become harmful, and thus bring into the record a reversible error. In determining the effect of a decision, regard must be had to the condition of the record at the time it was made, and if it was then correct, or harmless if wrong, it can not afterwards be changed by the act of the party against whom it was made and rendered available upon appeal. Cincinnati, etc., R. W. Co. v. Smith, 127 Ind. 461, 26 N.E. 1009.
It is insisted by counsel for appellant that incorporated towns in this State have power under the general statutes to compel abutting property owners to build and construct new sidewalks and street improvements, but after such improvements have been constructed, there is no power in such corporations to compel owners to make repairs thereto. Assuming this to be the law, it is further insisted that the third paragraph of answer shows the excavation was made by a prior owner of the property, who at the time constructed a good, substantial sidewalk along the property, under an ordinance of the town and the flagstone covering part of the area was part of the sidewalk, and when it became out of place and dangerous, it...
To continue reading
Request your trial