29 Ind. App. 667 | Ind. Ct. App. | 1902
A demurrer to the complaint of the appellee, Martha J. Laughlin, against the appellant, for want of sufficient facts, was overruled. After introductory matter, it was alleged in the complaint, that, long before the date of the injury complained of, the city, by due process of law, improved a portion of Sixteenth street, extending north and south in the city, by macadamizing and graveling and by constructing on either side brick sidewalks; that North 0 street, extending east and west, intersects the portion of Sixteenth street so improved; that at the intersection, on the south side of North C street where it crosses Sixteenth street, on the sidewalk on the east side thereof, was constructed a small culvert by the city at the time of the improvement; that the plan of constructing the culvert was the setting of curbstones, about three inches in thickness, in an upright position, about fifteen inches apart, the depth of the space or drain over which the culvert was made being
It was further alleged that the city carelessly, negligently, and knowingly placed upon these stringers á thin board about five-eighths of an inch in thickness and of less width than the space between the curbings, and negligently, carelessly, and knowingly failed to saw out or'groove the board on either side so that it would be properly held in its place, but carelessly, negligently, and knowingly placed the board therein in a loose condition without any means of its being held and retained in its proper position and place, and negligently, carelessly, and knowingly failed to place therein any timber or board of sufficient thickness or width to fit the space as so designed, and to be of such width and so attached and hung therein as to be safe for ordinary travel, and to be retained in its proper position. It was alleged that the culvert was constructed upon a sidewalk over which there was great travel; that the appellee at all times mentioned in the complaint was a resident of the city; that on the Ith of September, 1898, she was walking along Sixteenth street in a careful and prudent manner; that as she approached and entered upon and was about to cross the culvert, one Anna Churchill, a resident of the city, was walking upon the street and sidewalk, and stepped upon said board; that the board was displaced by Anna Churchill’s stepping upon it at the instant at which appellee was about to cross the culvert, and thereby tripped and threw the appellee violently to the ground, without her fault or negli
It is contended on behalf of the appellant that the complaint is defective because (1) it does not contain an allegation that Anna Churchill was without fault; also (2) because it is not alleged that the appellee had no notice of the defect in the street; and (3) for the reason that it is not alleged that the city knew of the defect in the street.
The allegation that the appellee’s injury was without any fault or negligence on her part, and solely through the negligence and carelessness of the appellant, in the absence of any statement directly or indirectly imputing any fault or negligence to Anna Churchill, seems to import, by inference, that there whs no culpability and no negligence on the part of Anna Churchill contributing to the injury. If we assume, however, that such language is not equivalent to a direct averment that she did not by her fault or negligence contribute to the injury, we could not for such reason condemn the pleading. It appears from the complaint that the board was displaced by Anna Churchill’s stepping upon it, and thereby the appellee was tripped and thrown down. Therefore the act of Anna Ohurchill in stepping upon the board was a cause which, with the negligence attributed by the pleading to the appellant, brought about the injury which is alleged to have been caused by the specified negligence of the appellant; the act of Anna Churchill being an
The municipal corporation should have foreseen that persons walking on the sidewalk at the much frequented place where the culvert was constructed probably would displace the inseeured board by stepping on the culvert, either with ordinary care or negligently, at a time when another person lawfully using the public way and walking with ordinary carefulness would be tripped by the suddenly displaced board. If the person who stepped on the board, and thereby displaced it, did so negligently, the displacement of the board thereby was such a consequence of the negligent construction as ought to have been anticipated, because it might reasonably have been foreseen or expected under all the circumstances stated. If there was negligence on the part of Anna Churchill, it was not only not sufficient of itself, without appellant’s alleged negligence, to produce the injurious result, but it was such negligence as might reasonably have been anticipated, and was a probable occurrence against which it was the duty of the city to guard in constructing the culvert. The displacement of the board by Anna Churchill’s stepping upon it was itself caused by the negligent construction of the culvert. It was a consequence of the original negligence charged, such as might, with reasonable care and diligence in the construction of the culvert, have been anticipated as a result of the alleged negligence therein. Wright v. Chicago, etc., R. Co., 27 Ill. App. 200.
It might with reasonable prudence have been expected that as a result of such negligence an injury would probably occur in the very manner in which the particular injury complained of did occur. The original negligence of the appellant was the proximate cause of the intervening, occizrrence, — the displacement of the board, — which resulted in the injury, and, therefore, was the cause of the injury. The intervening occurrence was, indeed, merely one mode
In Lane v. Atlantic Works, 111 Mass. 136, 139, is the following language, commended in Thompson on Neg. (2d ed.), §49: “The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.” In that case it was held to- be immaterial whether the act of the intervening third person was mere negligence or a voluntary intermeddling, if it was an act which the defendant ought to have apprehended and provided against.
In Shearman & Bedfield on Beg. (5th ed.), §29, is the following statement: “The practical solution of this question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not) would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” In §34 of the same work is the following: “If the negligent
To render a defendant liable for the proximate and natural result of his wrong, it is not necessary that the par-, ticular damage which accrued as a natural and probable consequence should have been actually foreseen or expected. Bohrer v. Dienhart, etc., Co., 19 Ind. App. 489; Billman v. Indianapolis, etc., R. Co., 76 Ind. 166, 174, 40 Am. Rep. 230; Ohio, etc., R. Co. v. Trowbridge, 126 Ind. 391; Thompson on Neg. (2d ed.), §59. If Anna Churchill was negligent, her negligence could not be attributed to the appellee, and it would not relieve the appellant from the consequences of its negligence in relation to the condition of the sidewalk. Board, etc., v. Mutchler, 137 Ind. 140; Town of Knightstown v. Musgrove, 116 Ind. 121, 9 Am. St. 827; Abbitt v. Lake Erie, etc., R. Co., 150 Ind. 498, 513.
Town of Nappanee v. Ruckman, 7 Ind. App. 361, was an action for an injury sustained by reason of a worn board of a sidewalk, when the plaintiff was walking on the sidewalk with another person. It was held that it was not necessary to aver in the complaint that the person who was with the plaintiff on the sidewalk when she was injured, and who caused the board to tilt when they stepped on it, was free
Knowledge of the defect and even knowledge of the danger would affect the determination of the question as to the appellee’s contributory negligence, which was expressly negatived. No relation existed between the parties which made it incumbent on the appellee to deny knowledge. The allegation of freedom from fault or negligence was a denial of any contributory negligence on her part, and therefore negatived such knowledge as would have rendered her conduct negligent, and was sufficient without any averment as to her knowledge. Citizens St. R. Co. v. Sutton, 148 Ind. 169; Ohio, etc., R. Co. v. Trowbridge, 126 Ind. 391; City of Huntingburgh v. First, 22 Ind. App. 66; City of Huntington v. Folk, 154 Ind. 91; Board, etc., v. Mutchler, 137 Ind. 140, 148; City of Lafayette v. Weaver, 92 Ind. 477.
It is finally objected that it is not alleged in the complaint that the appellant knew of the alleged defect in the sidewalk. Where the defect in a sidewalk which occasioned the injury to the plaintiff was caused, not by the municipal corporation, hut by the act of a third person, or where the defect existed at the time of the injury by reason of the negligent failure of the municipal corporation to perform its duty by reparing the public way, it is in general necessary, in an action against the municipal corporation to recover damages for the injury, to show that the defendant had notice of the existence of the defect, either actual notice for
“There is a clear distinction between cases where the defect is caused by the act of a third person and those in which it is caused by the municipality, or in the cause of which it has a direct agency.” Elliott on Eoads & Sts. (2d ed.), §627. Where a municipal corporation causes the improvement of its sidewalk by its independent contractor, whatever be the proper statement as to the responsibility for an injury to a third person through the negligence of the contractor or his servants during the progress of the work and while the sidewalk is in the possession of the contractor for the purposes of the improvement, the municipal corporation must be regarded as liable for an injury to a third person occurring after the work has been done and the im
In tbe complaint before us it is stated that tbe appellant, by due process of law, improved tbe street long prior to tbe appellee’s injury, and tbe culvert was constructed by tbe city at tbe time of this improvement. Tbe defectiveness of tbe culvert which occasioned tbe injury is shown to have been defectiveness in tbe construction of tbe improvement, and the defect is charged to have been caused by tbe appellant itself, negligently and knowingly. It was not necessary, we think, to allege further that tbe appellant bad notice of tbe defect.
On tbe 11th of February, 1901, in tbe January term, tbe court overruled tbe appellant’s motion for a new trial, and rendered final judgment, and tbe official reporter was ordered to file her longhand transcript of the evidence in tbe clerk’s office within ninety days, and sixty days were given
Judgment affirmed.