Common Council v. McClure

| Ind. | May 15, 1850

THIS was an action on the case by McClure against the Common Coimcil of Indianapolis to recover damages occasioned by the fall of his minor son through a bridge within said town, which bridge was out of repair. The bridge was situate west of West street, and was over an arm of the canal running from the basin into White river. It is contended that it was the duty of the town to keep said bridge in repair, and that, hence, she is liable for damages occasioned by its being out of repair.

Had this bridge been upon one of the streets of the town, perhaps this action might have been sustained, though we do not so decide; but it is not shown to have been so. It is upon the Cumberland or National road, and that road, at the point where' the bridge in question is situate, is not upon and along any street of Indianapolis, according to the original plat of the town, and there was no evidence upon the trial that the town had ever adopted the Cumberland road as a street. The town did not build this bridge, and certainly it is not in the power. of the general government, or of turnpike or plank-road companies, by running their improvements through the town and building bridges upon them, to burden the town, against her will, with the duty of keeping them in repair. The National road had not been surrendered to the state, even, at the time of the accident in question upon the bridge.

The judgment of the Court below is reversed with costs. Cause remanded for further proceedings.