141 Ind. 38 | Ind. | 1895
The appellant sued the city for personal injuries sustained in falling from the lot of another into a street newly but properly graded to the depth of six
The record discloses affirmatively that a demurrer was sustained to the original complaint, without an exception to the ruling, and that an amended complaint, in two paragraphs, was subsequently filed, to which paragraphs a demurrer was sustained and exception reserved. The assignment of error in this court is ‘ ‘that the court erred in sustaining the demurrer to the appellant’s complaint. ’ ’
It thus appears that the assignment of error is upon the ruling to which no exception was taken, and which was waived by the filing of an amended complaint, and it further appears that if the assignments were considered as relating to the ruling upon demurrer to the amended complaint, it is joint as to the paragraphs, and if either paragraph should be held insufficient both
The facts, as we have stated them, are those pleaded in the first paragraph of amended complaint, which paragraph, though it differs but slightly from the second, the appellant’s counsel concede is insufficient. This concession, under the assignment of error, would preclude a consideration of the second paragraph. But waiving, for the moment, this concession and the absence of an assignment of error in ruling upon the demurrer to the amended complaint, we may suggest the serious doubt of the sufficiency of the complaint. Negligence involving no breach of duty is an anomaly not known to the law, and counsel have not suggested, nor does the pleading disclose, a duty resting upon the city to so guard the premises of a citizen as to protect him, or a trespasser, from falling therefrom to the street. The rule requiring cities to keep their streets in a reasonably safe condition for public travel does not suggest a duty as to one who is not a traveler, and, as we have said, the complaint before us makes no allegation as to the imperfection of the street or that its changed condition had been wrought in a manner j not authorized by law. If cities were required to maintain such guards for any such purpose, they would be equally liable for the trespasses of roving stock or the escape of the lot owner’s stock as for an injury sustained by such owner in walking over the unfenced embankment.
No error is presented by the record, and the judgment of the circuit court is affirmed.