176 Ind. 347 | Ind. | 1911
The action is for personal injuries to appellant, caused by being tripped by a wire, upheld by stakes, placed along the curb line of two intersecting streets for the apparent purpose of protecting a grassplot between the sidewalks and roadways. The question turns upon the effect to be given the following material averments of the complaint, to which a demurrer for want of facts to constitute a cause of action was sustained: That at a point on said strip of ground and in front of a dwelling-house on West Jefferson street, which runs east and west, in the city of Fort Wayne, the street is improved with a paved roadway, with a grass-plot seven feet, four inches wide between the curb of the roadway and the sidewalk from Fulton street to Broadway, the latter being alleged to be the main north and south business street of the city; that at a point within seventy feet of the main business portion of Broadway, and on the south side of West Jefferson street, there were two small stakes extending about a foot from the surface of the ground and imme
Appellee’s contention is that as §8888 Burns 1908, Acts 1905 p. 219, §234, provides for grassplots on streets, stretching wires across and along them to protect them cannot be regarded as unlawful, and that under the doctrine set out in the case of Teague v. City of Bloomington (1907), 40 Ind. App. 68, and cases there collected, a city is not liable.
Many eases hold that such erections as hydrants, telegraph and telephone poles, hitching-posts, stepping-stones, and other barriers outside the sidewalk or roadway proper, in grassplots, or town pumps or fountains in streets, are not obstructions for which a city is liable as for nuisances. These cases seem to be grounded on the proposition that so long as there remains reasonable space outside the obstruction a city is not remiss in allowing the obstruction, especially where they are of a public utility character. Lostutter v. City of Aurora (1891), 126 Ind. 436, 12 L. R. A. 259; Teague v. City of Bloomington, supra; City of Vincennes v. Thuis, supra; Dougherty v. Trustees, etc. (1899), 159 N. Y. 154, 53 N. E. 799.
There are eases holding a qualified doctrine as to obstructions or excavations so near a roadway or sidewalk
Greater diligence may be required in the case of a much-traveled way, than where it is little used, in case that fact is a factor in determining what is reasonable care. Forker v. Borough of Sandy Lake (1889), 130 Pa. St. 123, 18 Atl. 609; Miller v. Town of Canton (1905), 112 Mo. App. 322, 87 S. W. 96; Welsh v. Inhabitants of Amesbury (1898), 170 Mass. 437, 49 N. E. 735; Hennepin v. Coleman (1907), 132 Ill.