138 Ind. 566 | Ind. | 1894
This was an action by the appellee against the appellant, to recover damages for personal injuries, alleged to have been caused by an obstruction in one of the streets of said town.
On the overruling of demurrers to the complaint, the appellant answered in general denial, and also by two special pleas, to the first of which, a demurrer was overruled, while to the second, a demurrer was sustained.
The issues joined were tried by a jury, and, by agreement, the jury returned into court their special verdict on all the issues in the cause. The material facts found are: That Park street, in the town of Fowler in Benton county, is a public street, which was laid out and dedicated many years ago, and. accepted by said town, and which for many years past has been used and traveled, and was on the 27th day of October, 1891, used and traveled by the citizens of said town, and by the public; that in April or May, 1891, one Jacob Lucas erected a fence across said street, from the southeast corner of out-lot twenty-nine to the southwest corner of outlot twenty-eight of Fowler’s addition to said town, and within the corporate limits thereof; said fence consisted of four or five oak posts firmly planted to the depth of about two feet in the ground, with wire strung thereon, and securely fastened. In the center of said street, in said fence, was a gate fastened between two of said posts. In the
A motion for a venire de novo was overruled. A motion for a new trial having been filed, the appellee filed a remittitur of one 'thousand dollars of the damages allowed by the verdict of the jury, whereupon the motion for a new trial was overruled.
The appellant then filed a motion for judgment .in its favor upon the verdict, which was also overruled.
Judgment for five thousand dollars was then rendered in favor of appellee.
After the evidence was given, and before the argument of counsel, the appéllant moved the court to instruct the jury to return a verdict for the appellant, on the ground' that appellant was not liable for the injuries suffered by appellee. This motion was overruled, which ruling is made one of the grounds of the motion for a new trial. The motion for a verdict in favor of the appellant is brought into the record by-a special bill of exceptions.
Many assignments of error are made, but the chief reason urged why the judgment should be reversed, is that it was not shown that the place where the injury was received was a public street.
It is not questioned that in 1875, more than sixteen years before the time of the injuries complained of, Fowler’s addition to the town of Fowler, including Park street and the place therein where the injuries were received, was duly platted and the plat acknowledged and recorded.
But appellant first objects that no proof, other than the plat, was introduced to show that at the time of making, filing and recording such plat, Moses Fowler was the owner of the land so platted.
This is not a controversy as to the ownership of the ground occupied by the street; no one claiming to be the
As between. the parties to this action, the plat of Fowler’s Addition, on which "Park street” appears, and which was filed and recorded in the recorder’s office for more than sixteen years prior to October 27, 1891, is prima facie evidence of ownership by Fowler of the land so dedicated, and of his intention to so dedicate it. 2 Greenleaf Ev., section 662; Central Branch, etc., R. R. Co. v. Andrews, 41 Kan. 370; State v. Hill, 10 Ind. 219. See, also, City of Indianapolis v. Kingsbury, 101 Ind. 200; Elliott Roads and Streets, p. 121 et seq.
It is next contended that there was no acceptance of the dedication, either by the town or by the public. The jury expressly found: "That there is a public street in said town of Fowler, named and known as Park street, which was laid out and dedicated to said town many years ago, and accepted by said town, beginning at the north limits of said town, running due south through said town to the south line of said town, which street for many years past has been used and traveled, and was, on the 27th day of October last, traveled by the citizens of said town and by the public.”
This finding, even omitting what may be regarded as conclusions, is, we think, sufficiently clear to show acceptance and use of the street by the town and by the public.
We have looked through the evidence, and we think that the finding is well supported by the testimony of
The jury finds that at the point of the accident, the ground was comparatively level. No work was needed there. But there was evidence of some work by the town authorities to the north of the place of the accident, and also to the south where the town marshal aided in the erection of a bridge upon the street. As to user by the public, there was evidence from which the jury might reasonably conclude that the road had been used by the public as a thoroughfare for twenty or twenty-one years. This is sufficient. Elliott Roads and Streets, p. 125 et seq., and cases cited; Summers v. State, 51 Ind. 201.
It is next contended that the appellee should not recover, for the reason that he knew of the obstruction and should, therefore, have avoided it. The appellee, however, testified positively that he did not know that the post still remained -in the street, as he had been informed some time before that it had been removed. Besides, it is agreed that his mules were frightened, and the evidence is undoubted that they shied off the beaten track in spite of all efforts made by appellee to control them. The post was several feet from the traveled track, and even if appellee knew it was still there, he-could not be held responsible for the frightening of his team and their going out of the beaten track and upon the post when he was utterly unable to control them. We do not think that any contributory negligence is shown. Maus v. City of Springfield, 101 Mo. 613.
Counsel point out many facts as to which they contend that there is no finding in the verdict of the jury,
Several objections are urged against the complaint, but we think they are all without substantial merit. It is claimed that the proximate cause of the accident was not the obstruction in the street but the frightening of the team by the stray horses, and that for this reason the complaint is bad. If the town was at fault as to the obstruction, and the obstruction was one cause of the injury, the town can not escape responsibility because some other cause aided in bringing about the accident. See Board, etc., v. Mutchler, 137 Ind. 140, where a horse • driven in a buggy was frightened and backed off a bridge, but where the board of commissioners was held responsible for the accident for the reason that they had neglected to place guards upon the bridge. See also City of Crawfordsville v. Smith, 79 Ind. 308.
The court did not err in sustaining a demurrer to the third paragraph of the answer. In that paragraph it was averred, in effect, that appellee might have taken another road, and so avoided the obstruction: The road taken by appellee was the most direct to his home, and even if it were not so, he was not obliged to choose another road when this one was open to the public. Board, etc., v. Mutchler, supra.
We have found no error in the record for which we should be justified in reversing the' judgment.
The judgment is affirmed.