35 Ind. App. 389 | Ind. Ct. App. | 1905
This action originated in the Knox Circuit Court, and, on change of venue, was tried in the court below. Appellee was plaintiff, and sued appellant to recover damages alleged to have resulted from its negligence. The amended complaint is in a single paragraph, fi> which a demurrer for want of facts was addressed and overruled. Appellant’s motion to require appellee i» make her complaint more specific was also overruled. Trial by jury, resulting in a verdict in favor of appellee. Appellant’s motion for a new trial was overruled, and judgment pronounced upon the verdict. The several rulings referred to are assigned as errors.
In her amended complaint the appellee avers: “That the defendant on said date [October 9, 1899], and for a long time prior thereto, carelessly and negligently permitted and suffered a large stone, unguarded and unprotected, to remain along the sidewalk, at the edge thereof, on Seventh street, near Barnett street, and that the same was suffered and permitted so to, remain there by the defendant without any guards, danger lights or any other means of notifying persons of its presence, who wore passing along said street in the night-time; that said plaintiff on said date, and in the night-time when it was very dark, was passing along the sidewalk on said Seventh street in a careful and prudent manner, while the night was very dark, and while so passing along she was unable to see or discover said obstruction aforesaid on account of the want of guards or light on said street, and danger lights to warn passengers thereon, and persons using said street, of the presence of said obstruction. Plaintiff says while she was passing along said street in a careful and prudent manner, without any negli
It is further charged in the complaint that, by virtue of an ordinance of said city, appellant should have had said street lighted by lights which were provided for said purpose, but that on the occasion of her accident the same were not lighted, and that appellant had no danger-signal placed at said stone, or guard of any kind to warn persons of the presence of the same, and to avoid collision with it. The complaint then describes minutely the injuries sustained by appellee, and concludes as follows: “That all of said injuries were inflicted on account of the negligence of the defendant aforesaid, which said defendant had permitted and suffered said stone to remain at the edge of the sidewalk, and so near thereto that persons who were using said sidewalk were likely to collide with said stone^ and that the defendant was well aware of its maintenance, or could have been by the exercise of diligence on its part, but that the plaintiff had no knowledge whatever of its presence or existence, and was unaware of its being so situated, and had no knowledge of its existence whatever.”
Another rule which seems to be well fortified by the authorities is that, wherever railings or barriers are necessary for the safety of travelers, it is negligence in the municipality to fail to construct and maintain them. Elliott, Roads and Sts. (2d ed.), §618; Orme v. City of Richmond (1884), 79 Va. 86; Olson v. City of Chippewa Falls (1888), 71 Wis. 558, 37 N. W. 575; Borough of Pittston v. Hart (1879), 89 Pa. St. 389.
In the case of Higert v. City of Greencastle (1873), 43 Ind. 574, the Supreme Court, at page 597, quote approvingly the paragraph just quoted from Davis v. Hill, supra. See, also, Willey v. Portsmouth (1857), 35 N. H. 303; Coggswell v. Inhabitants of Lexington (1849), 4 Cush. 307; Hayden v. Inhabitants of Attleborough (1856), 7 Gray 338; Jones v. Inhabitants of Waltham (1849), 4 Cush. 299, 50 Am. Dec. 783; Palmer v. Inhabitants of Andover (1849), 2 Cush. 600.
In the case of Bunch v. Town of Edenton (1884), 90 N. C. 431, it was said: “The side of a street is a material part of it, and must be kept free from danger, however the same may arise, as well as other portions of the street. Pits and other dangerous places immediately adjoining it and near to it make it perilous, and such places are nuisances. When these are permitted to exist and the streets are not properly protected against them, the latter are not in reasonable repair.”
In the case of the City of Aurora v. Colshire (1877), 55 Ind. 484, the city was held liable for an injury resulting to the appellee by falling over a wall erected on private property. . In-that case the city was held liable for its failure to guard the dangerous condition by a railing. The conditions created a pitfall, but the decision did not rest
In the ease of the City of Delphi v. Lowery, supra, it was held that where there is a dangerous place in or near the usual traveled part of the street of the city, the municipal authorities must use ordinary care to protect from injury persons who make lawful use of such street in a reasonably prudent manner; and such duty is not fully discharged by making the traveled part of the street safe, but such measures as ordinary prudence requires must be taken to prevent persons using ordinary care from falling into dangerous places along the sides, or in close proximity thereto'.
In the case of Drew v. Town of Sutton (1882), 55 Vt. 586, 45 Am. Rep. 644, the court said: ' “If'a railing is lacking where one is necessary to the safety of travelers, the traveled way itself is thereby rendered unsafe and out of repair. And it makes no difference whether this necessity for a railing is created by the condition of things within the limits of the way or without the limits, but in dangerous proximity to the way. In either case the question is: Does the safety of the traveler require a railing? Is the road reasonably safe and sufficient without one ?”
There are many other cases that might be cited, which are in line with those to which we have referred, but we do not deem it necessary to do' so.
The modern mode of improving streets is well understood. The sidewalk is generally elevated above the outer edge- of the street, and the line of demarcation is designated by what is usually known as. the “curb,” which is on a level with the sidewalk. The distance from the top of the curb to the street surface varies, but is seldom less than from sis to eight inches. It also often occurs that between the sidewalk and the adjacent property, marking the property line, copings are erected. These conditions are not free from dangers, for travelers, in the dark, are liable to wander from the sidewalk to the street, over the “curb,” or stumble against the coping, and be injured. Such conditions would not render a city liable for damages, where injuries resulted therefrom.
The stone over which appellee fell is described as a “large”' one. It does not appear from the complaint whether it was on the outside or inside of the sidewalk, and we can not look to the evidence, in this connection, to determine that question. It was “along the sidewalk, at the edge thereof,” and it is immaterial which side it was on. The word “large,” as here used, like “along” and “edge,” is a relative term. It does not indicate the size or character of
Let us here note the language of the complaint: “That she ran against the same [the stone] because of the defendant’s negligence * * * in not having said street lighted, nor having danger-signals to show where said obstruction was, and not having the same guarded so' that persons using the sidewalk could avoid a collision with said obstruction.” If appellee has not shown a condition requiring appellant to erect barriers and maintain danger-signals, then her complaint does not state a cause of action. The conditions shown by the complaint are: (1) A “large” stone “along the sidewalk, at the edge thereof;” (2) a failure to light
We are confronted with these questions: What was appellant’s duty with respect to this stone ? Did it constitute a defect in the sidewalk ? Did its presence, as described by the complaint, render the walk unsafe for travel in the ordinary modes ? We do not conceive it to be the duty of a city to erect railings or barriers to prevent travelers from wandering off its. sidewalks, unless, it is apparent that injury would result. City of Hannibal v. Campbell (1898), 86 Fed. 297, 30 C. C. A. 63; 2 Dillon, Mun. Corp. (4th ed.), §1005; Chapman v. Cook (1872), 10 R. I. 304, 14 Am. Pep. 686; Sparhawk v. City of Salem (1861), 1 Allen 30, 79 Am. Dec. 700; Adams v. Inhabitants of Natick (1866), 13 Allen 429.
A traveler in the dark may chance to wander off of a perfectly constructed and safe sidewalk onto the street, and, in doing so-, unexpectedly step therefrom to the street surface, which may be six inches or more below, as indicated by the curb, and be injured, yet it could not be successfully maintained that the city would be liable. He might also strike his foot against a natural elevation of the adjacent lot, of two or three inches or more, and thus be thrown to the earth and injured, and yet in such event a city would not be liable. These are dangers that are not reasonably anticipated, and can not be guarded against.
Judge Dillon correctly states the measure of a city’s duty in this regard as follows: “A municipal corporation is not an insurer against accidents upon the streets and sidewalks. ÜSTor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient, we think, if the streets (which include sidewalks and bridges thereon) are in a rea
In harmony with the rule declared by Judge Dillon, before a plaintiff can recover against a municipal corporation for injuries sustained by defective streets or sidewalks, his complaint must show that such street or sidewalk was not in a reasonably safe condition for travel in the ordinary modes by night as well as by day. Such facts must be pleaded as will enable the court to say as a matter of law, as applied to the facts, that they constitute actionable negligence. It is not sufficient to show that injury resulted.
The duty to erect barriers or railings is not an absolute one. As Judge Dillon says: “Thus towns are not necessarily bound to fence or to erect barriers to prevent travelers from getting outside .of the road or way. A municipal corporation may determine for itself to what extent it will guard against mere possible accidents, and, if it be not guilty of negligence, the judicial tribunals are not to say it shall suffer in damages for not giving to the public more complete protection, since that would practically take the administration of municipal affairs out of the hands to which it has been intrusted by law.” 2 Dillon, Mun. Corp. •(4th ed.), §1005.
In Marshall v. Inhabitants of Ipswich (1872), 110 Mass. 522, it was said: “It is well settled that towns are under no obligation to light the highways, or to erect railings for the mere purpose of preventing travelers from straying from the traveled path. * * * The purpose of such railings is to make tire way itself safe and proper for use. They are required in the case of bridges, embankments or causeways, and generally where excavations, deep water, etc., are so near to the line of public travel as to expose travelers to
In Hubbell v. City of Yonkers (1887), 104 N. Y. 434, 10 N. E. 858, 58 Am. Rep. 522, tire court said: “That which never happened before, and which in its character is such as not naturally to occur to prudent men to> guard against its happening at all, can not, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.” This language is applicable to the facts here pleaded.
Appellee, as shown by her complaint, ran against the stone because it was so dark sire could not follow tire walk. Appellant was not responsible for tire darkness, and as we have seen it was not negligence for it to fail to light its streets. If she had remained on the sidewalk she would not have been injured.
So far as the complaint goes, we can not say, as a matter of law, that appellant was. required to erect a barrier to prevent travelers, on the sidewalk from corning in contact with it. Neither can we say the stone, as described, constituted a defect in the sidewalk; nor that its presence “along the sidewalk at the edge thereof” rendered the walk unsafe for travel in the ordinary modes. A stone, such as is described in the complaint, would not attract the attention of the city’s officers to it, nor suggest to them or to any one else that it was dangerous and should be guarded. So far as tire complaint goes, the appearance of the stone was not unusual, and would not suggest to the mind of an ordinarily prudent person that it was a menace or hazard to a foot traveler using the sidewalk in the “ordinary modes” of
While a city is charged with the duty of making its streets and sidewalks reasonably safe for travel, it is not required to guard against every possibility of danger incident to their use. Nor is every defect in a street or sidewalk, though it may cause injury, actionable.
Under the facts hero pleaded,. to- hold that they state actionable negligence, and constitute a cause of action, would be placing a burden upon appellant and all other municipalities which the law does not authorize.
The judgment is reversed, and the trial court is directed to sustain appellant’s demurrer to the amended complaint.
Comstock, C. J., Robinson, P. J., and Myers, J., concur. Roby and Black, JJ., absent.