52 Ind. App. 510 | Ind. Ct. App. | 1912
recover from appellee the amount of a judgment which it had been required to pay to Minnie Woodworth, a pedestrian, who had been injured by falling through a defective sidewalk which appellant, with knowledge, had allowed to remain in
The special finding of facts, so far as essential to the determination of the question before us, is as follows: Appellant was a city duly organized under the laws of Indiana. Appellee was a railroad corporation also duly organized under the laws of Indiana, and for a number of years operated a line of railroad which passed through Monroe county and the city of Bloomington, and transported passengers and freight over its line of road for hire. Said road in passing through the city of Bloomington runs practically north and south, crossing certain streets of said city at right angles, until it arrives at Sixth street, a street running east and west, where it turns toward the northwest, crossing Seventh street, which runs parallel with and lies immediately north of Sixth street. Said streets are crossed at grade. Before the construction of the grade of the- railroad in 1853 there was a stream of water running practically south across Seventh street, and which street crossed through the bed of the stream without any superstructure. In constructing the grade for said railroad the course of said stream was deflected from the west side of said grade, beginning at the outer edge of the walk in the north line, and a culvert was constructed in a southeasterly direction to the south line of said Seventh street, said culvert being about six feet deep. In making the grade, the railroad company-graded the whole width of the street on both the east and west sides thereof back from 150 to 250 feet over said culvert, and to the depth of 1 or 2 feet, over which and by
It is contended by appellant that both by the principles of the common law and by statute a duty is imposed on appellee, both to construct and to maintain all highway crossings and the approaches thereto in a reasonably safe condi
In the original complaint defendant city was charged with negligence in failing sufficiently to light the defective portion of the walk in suit. As to this charge appellant contends that lighting a street of a city is a governmental function, and that since a city cannot be held liable for a failure to perform a governmental function, the conclusion announced by the court could not have been based on that fact as constituting an act of negligence.
The following sections of the statute provide for the collection of a penalty for failure to comply with the provisions of this section, and also provide that the municipality may, on failure of the railroad so to do, have the work done at the expense of such railroad company.
By the enactment of §§5250-5254 Burns 1908, Acts 1895 p. 233, §§1-5', it was the evident intention of the legislature to place the primary duty on all railroad companies so to construct and maintain all street crossings as to make them rea
In the case of Wabash R. Co. v. De Hart (1903), 32 Ind. App. 62, 67, 65 N. E. 192, the court said: “If it [railroad company] does not restore the highway which it crosses in such a manner as to comply substantially with the statutory requirement, the dangerous condition thus resulting will constitute a public nuisance, or there is negligence per so.” After further discussing the duties of the railroad to repair its crossings, the court continues: “The duty devolved upon it, the nonperformance of which constitutes actionable negligence, is an obligation to exercise carefulness, measured not only by the danger, but also by the privilege it enjoys of encumbering a public highway for its private benefit; and the manner in which the duty is to be performed is expressly enjoined and described by statute.”
In the case of Evansville, etc., R. Co. v. State (1898), 149 Ind. 276, 278, which was a suit by appellee to compel appellant by writ of mandamus to construct a suitable and safe crossing over its tracks at a street crossing, the court said: “This duty is imposed by statute in this State and also exists independent of any statute.”
In the case of City of Elkhart v. Wickwire (1882), 87 Ind. 77, in which the city had sued Wickwire to recover over what it had been required to pay, the law is thus declared: “It results from these general principles that if the facts stated in the special verdict can be regarded as showing that
In the later ease of City of Anderson v. Fleming (1903), 160 Ind. 597, 602, 66 L. R. A. 119, Judge Monks, speaking for the Supreme Court, said: “The established rule in this State is that when a street of a municipal corporation is rendered unsafe by the wrongful act or negligence of a third person, and the corporation is compelled to pay for injuries caused by such unsafe streets, it has a right of action over against the person who rendered the same unsafe, for the amount so paid. * * * In such cases, as between the municipal corporation and the one who created the dangerous condition which occasioned the injury, the latter is primarily liable, and said corporation, having been compelled to pay such damages to the one injured, becomes subrogated to the remedy of the injured party.
In the last case the court said: “If railroad companies are required by law, as well as by public policy, to keep, in good order, at their own expense, public roads' and private ways, where the same cross the right-of-way of the various railroads of this State, much stronger should be the reason for keeping in proper order and repair street crossings in cities and towns, which are likely to be thronged with persons.”
Under the law it was the duty of appellee to keep the sidewalk at the point where Minnie Woodworth was injured in a reasonably safe condition for travel, and for a failure to perform this duty it became negligent, and became liable to respond to her in damages for the injury she sustained. Appellant having been required to pay such damages is entitled to recover from appellee the amount so paid, and the trial court should have stated its conclusion of law in favor of appellant on the facts found.
a charge of negligently failing to guard the particular defective portion of the walk, by placing a danger light at that point. The lighting of streets by a municipality is merely the exercise of a governmental function and for a failure to exercise such a power, negligence cannot be imputed against any city or town.
In the case of City of Vincennes v. Thuis (1902), 28 Ind. App. 523, 528, 63 N. E. 315, the court said, “It is not negligence per se for a city to fail to exercise its authority, conferred upon it by law, to light its streets. * * * So that a failure to light the street is not a sufficient charge of negligence to render the city liable.” See, also, City of Vincennes v. Spees (1905), 35 Ind. App. 389, 74 N. E. 277. The greater weight of authority in our own State as well as in other states, is against the contention of appellee.
The judgment of the trial court is therefore- reversed, with instructions to restate its conclusion of law in favor of appellant, and to render judgment for appellant in the sum of $5,966.70, with interest thereon from December 3, 1907.
Note. — Reported in 98 N. E. 188. See, also, under (1) 28 Cyc. 1342; (3) 28 Cyc. 1434; (5) 33 Cyc. 273; (6) 23 Cyc. 1309; (7) 28 Cyc. 1403. As to a city’s liability for injuries resulting from defects in streets, see 103 Am. St. 260. As to the right of a municipality which has been held liable for injuries from unsafe condition of street to recover over against the owner or occupant of abutting property, see 12 L. R. A. (N. S.) 949. On the right of a municipality to recover indemnity or contribution from one for whose tort it has been held liable, see 40 L. R. A. (N. S.) 1165. On the question of the duty of a municipality to light streets, see 13 L. R. A. (N. S.) 1166. For a discussion of the exoneration between a municipality and abutting owners as to damages paid on account of an unsafe highway, see 1 Ann. Cas. 945; 14 Ann. Cas. 1047.