156 Ind. 478 | Ind. | 1901
Appellee, Claude Bennett, was injured in 1898, while riding a bicycle on a public streetdn the city, of Kokomo, by colliding with a. traction-engine owned by appellant Gwinn, and operated, by his employe Bogue. The complaint ds in four paragraphs. The first, .second, and fourth paragraphs are, predicated, upon t,he alleged, negligence of appellants and the w-ant of contributory negligence on the part of the injured party. The second paragraph charges a wilful injury. It is alleged in said first paragraph that said traction-engine was run on. said street of said city without right, and without having any person in advance of said engine not less than fifty yards to warn all persons approaching said engjne who might be in charge of horses, of the proximity of said engine, and in violation of city ordinance 383 of the city of Kokomo, which prohibited the running of traction-engines and other vehicles propelled by steam on and over the streets and alleys of said city. The
It is first insisted by appellants that the court erred in admitting in evidence ordinance number 383 of the city of Kokomo, which prohibits the running of traction-engines or other vehicles propelled by steam on the streets and alleys of said city, for the reason that the city council had no power to enact said ordinance, and therefore the same was invalid. Appellee insists that this question cannot be considered for the reason that the bill of exceptions containing the evidence and the objection of appellants to the introduction of said ordinance in evidence and the ruling of the court thereon is not properly in the record. The question of the validity of said ordinance is presented by instruction nine given by the court to the jury, over the objections of appellants, which is also assigned as a cause for a new trial. We need not, therefore, decide whether or not said bill of exceptions is in the record. The record shows that the bill of exceptions containing the instructions was properly filed May 29, 1899. The motion for a new trial was overruled April 7, 1899, and ninety days time given appellants within which to file bills of exceptions. Said bill of exceptions is copied into the transcript and contains the statement over the signature of the trial judge that it was tendered to and signed by him on April 7, 1899. This shows that the bill of exceptions containing the instructions was filed within the time given by the court, and that it was signed by the trial judge before it was filed. This fully complies with all the statutory requirements. §§638, 641 Burns 1894, §§626, 629 R. S. 1881 and Horner 1897; Robinson v. Dickey, 143 Ind. 205, 210; Ayers v. Armstrong, 142 Ind. 263.
In this State municipal corporations possess and can exercise only such powers as are granted by the legislature in express words and those necessarily or fairly implied or incident to the powers expressly granted and those essential to the declared purposes and objects of the corporation. No incidental powers can, fee implied except such as are
It is contended by appellee that the power to pass said ordinance was granted by the following provisions of •§§3541, 3623 Burns 1894. Section 3541 provides that the common council “shall have the additional powers herein permitted,. and may make and publish by-laws and ordinances necess.ary to enforce the same. * * * Twelfth. To regulate the use of coaches, hacks, drays and other vehicles for the transportation of passengers, freight or other articles, to or from points within the city for. hire or pay,” Section 3623, supra, provides that “The common
The ■ -provisions of the twelfth clause of §3541, supra,, give no authority to pass an ordinance prohibiting the running on. the streets and alleys of said city of all vehicles propelled, by steam. That clause only grants authority to regulate the .vehicles described, when used for the purposes mentioned therein. There is no statute to which our attention has been called, and we know of none, which, in express words, confers upon the common council of cities the power to pass an ordinance prohibiting the -running upon the streets ■and alleys of vehicles propelled, by steam. It is not necessary, therefore, to decide as to the power of the legislature •to-grant- such .authority'to municipal corporations. ■ -
Can the power to pass such an ordinance be fairly implied from those expressly granted, or is such power essential to the declared objects, and purposes of the corporation, or can such ordinance be sustained under the general grant of . authority over the “streets, highways, and alleys” ? It is evident that the power to pass such ordinance was not essential, to the accomplishment of the purposes for which such municipal corporations were created, nor for thqir continued existence.- Said ordinance was not, therefore, authorized by-any qf the- implied powers possessed by said city. Pittsburgh, etc., R. Co. v. Town of Crown Point, 146 Ind. 422, 35 L. R. A. 684.
. Does .the general grant of authority over the streets, highways, alleys, and bridges, given by §3623, supra, authorize the enactment of such an ordinance ? • To be valid under such general grant of power, the ordinance must be a reasonable exercise thereof. Pittsburgh, etc., R. Co. v. Town of Crown Point, supra. Highways, and streets are not for the-exclusive use of vehicles propelled by animal power, nor ■are travelers confined to the use' of. such power and ordinary carriages upon highways. - The use of any new and improved means of - locomotion must be deemed to have been con
A highway is a public way for the use of the public in general, for passage and traffic without distinction. Starr v. Chicago, etc., R. Co., 24 N. J. L. 592. The restrictions
In Wabash, etc., R. Co. v. Farver, 111 Ind. 195, 199, decided in 1887, this court by Mitchell, J., said: “Road engines propelled by steam, and portable engines operated by steam, have become familiar in every agricultural community. To declare that their use near, or their passage
Incorporated cities and towns in'this State have the power to regulate public travel upon the streets, so as to make them reasonably safe for those who- go upon them on foot or in vehicles, and to enact ordinances for the protection of life, health, and property, and may have the power to prohibit the use of certain streets for certain purposes and by
It is true, as insisted by appellee, that when the evidence is not in the record this court will not reverse a judgment on an instruction given, unless it would not be correct under any evidence that could be given under the issues. Wenning v. Teeple, 144 Ind. 189, 194. Erom what we have already said, it is evident that said instruction would not have been correct under any evidence that might have been given under the issues. It follows that the court erred in overruling the motion for a new trial.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.