171 Ind. 482 | Ind. | 1908
Action by appellee to recover for personal injuries sustained by him owing to the alleged negligence- of appellant in failing to maintain a barrier between a sidewalk and an adjoining low lot. There was an amended complaint in two paragraphs filed, to each of which paragraphs a demurrer for want of facts was overruled. It is contended that the demurrer should have been sustained for the reasons: (1) That, to constitute a good complaint for want of a barrierj facts must be stated showing a duty to construct the same, and that this must not be left to inference or conjecture; (2) that the complaint does not aver how low the lot was immediately adjoining the walk, so as to show that a barrier was required; (3) that the complaint does not show a causal connection between the injury and the want of a barrier, in that it is not shown that appellee’s fall off the walk was attributable to the want of a barrier, or .that he would have been protected from falling had a barrier been maintained.
It is admitted that both paragraphs of the amended complaint 'are the same, except that the second contains a direct averment of knowledge on the part of the town. We may therefore summarize the material averments of fact of the first paragraph as a proper preliminary to the consideration of said objections. After alleging the corporate character of appellant on, and for a long time prior to, March 4, 1905, said paragraph alleges that one of the principal streets 9f the town, where the injuries were sustained, was Broad street, running east and west through said town, and traversing the main business portion thereof, which said street and the side
It is true that the complaint does not predicate negligence upon the unevenness of, or the projections in, the sidewalk, nor does it allege that appellee stumbled upon one of the projections theretofore referred to in the complaint as mak
In City of Aurora v. Colshire (1877), 55 Ind. 484, the city was held liable for failing to construct a railing or guard, where it had graded up a street so as to make one side of the fill a stone wall which private owners had constructed upon their own property, the fact being that the plaintiff
It was said by Elliott, J., in City of Delphi v. Lowery (1881), 74 Ind. 520, 39 Am. Rep. 98: “The duty resting upon the municipality is not fully discharged by making the traveled part of the highway safe, and such measures as ordinary prudence requires must be taken to prevent persons, using ordinary care, from falling into dangers placed along the sides, or in close proximity to the termination, of the highway of the municipality. ’ ’
In Alger v. City of Lowell (1862), 3 Allen (Mass.) 402, Hoar, J., speaking for the Massachusetts Supreme Court, said: “The true test * * * is not whether the dangerous place is outside of the way, or whether some small strip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveler, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that the railing is requisite to make the way itself safe and convenient.”
In Bryant v. Town of Randolph (1892), 133 N. Y. 70, 30 N. E. 657, the court said: “Negligence on the part of a commissioner of highways may consist as well in the omission to erect barriers in dangerous places in the highway as in leaving a bed of the highway defective.”
In Hayden v. Inhabitants, etc. (1856), 7 Gray (Mass.) 338, the plaintiff’s injury occurred by his falling into a cellar, which was .either within the limits of the way, or in such proximity thereto as to render traveling thereon dangerous. The court held that the want of a railing, which was necessary for the safety of travelers, was a defect in the way itself, and that the town was liable.
In Hall v. Incorporated Town of Manson (1896), 99 Iowa 698, 68 N. W. 922, 34 L. R. A. 207, a recovery was upheld where the plaintiff, a foot passenger, fell, in the dark
In Angell, Highways (3d ed.), §262, it is said: “It is, moreover, no justification for a defect or obstruction that it is without the traveled path, if, from its nature or position it is dangerous to such as use the road. '* * * And if a road pass over a bank or bridge or along the verge of a precipice, it is the duty of a town properly to guard the edge of the road by walls or railings.”
account of the question whether he was injured thereby. The risk, if any, which he incurred, may not have been the proximate cause of his injury. Proximate cause is, in the majority of cases, a question for the jury (Davis v. Mercer Lumber Co. [1905], 164 Ind. 413; Chicago, etc., R. Co. v. Pritchard [1907], 168 Ind. 398, 9 L. R. A. [N. S.] 857), and, as the court below properly said to the jury in one of its instructions: ‘ ‘ The two essential elements
We find no error. Judgment affirmed.