5 Ind. 286 | Ind. | 1854
Leonidas Berry brought suit against The President and Directors of the Wayne Comity Turnpike Company, to recover damages sustained by him from a fall through a bridge alleged to belong to said company, and which was out of repair. The bridge was within the corporation of Cambridge City, The company .put in a general denial of each and all the allegations of the plaintiff’s complaint, and pleaded further that the bridge in question had been built, before the organization of the turnpike company, by the White Water Valley Canal Company; also that the defendant knew the bridge was out of repair; and also that it was through a sidewalk of the bridge that the plaintiff fell, which sidewalk was neither built nor owned by the turnpike company.
The plaintiff demurred to the plea setting up that the bridge was built by the canal company, and the Court sustained the demurrer; and he averred that the sidewalk was a part of the bridge and was the property of the company. The parties went to trial. During its progress the plaintiff asked leave to amend, by inserting in his complaint the allegation that he was ignorant that the bridge through which he fell was out of repair, and the Court permitted the amendment to be made.
The trial resulted in a judgment for the plaintiff for 150 dollars.
The appellant contends that the Court erred in granting the plaintiff leave to amend. Sec. 97, p. 48, R. S. 1852,
There is nothing in the record exhibiting an abuse of the Court’s discretion as to the amendment in question, and no motion for a continuance, or for the taxation of costs, was made.
The position of the appellant now under consideration, is, therefore, without foundation.
We think the Court committed no error in sustaining the demurrer to the .plea that the bridge was built by the canal company.
When that company constructed their improvement, they cut across an existing highway, rendering it impassable. The bridge was then erected, not for the use of the canal company, and as a part of her property, but to restore the highway. The bridge was in the place of the removed earth. It became a part of the highway. Some three or four years after said bridge was built, and while it was yet standing and used as a part of the public highway, the turnpike company was incorporated, with the right of converting said highway into a turnpike, and charging tolls thereon, and burdened with the duty of keeping it in repair. Said company received the highway as it was, with its bridges, culverts, &c., and subject to existing easements. We think, as to the public, the turnpike company was bound to keep the bridge in repair. So, also, may have been the canal company; and if said highway was along a street of Cambridge City, that corporation, likewise, may have been bound to keep said street and bridge in a passable condition. We see no reason why it might not happen, that a city, a turnpike, a canal, and a railroad company should, as to the public, be liable for defects in a bridge, so that a person injured might elect as to which he would proceed against, leaving the companies to settle the ultimate liability between themselves.
The issue of fact as to whether the sidewalk was a part
Said company might not have been bound to keep in repair the sidewalks to the bridge, because they were originally attached to it; but so long as it did continue and recognize them as a part of the bridge, thus inviting to then- use, it was bound to keep them in repair.
The declarations of one Peale were admitted in evidence as to some repairs by the turnpike company on said sidewalks, and their admission is said to have been erroneous.
We think it was sufficiently shown that he was acting as agent of the company when he made the declarations, to justify their admission in evidence; but if it was not, the declarations were entirely unimportant in the decision of the cause, and, hence, if erroneously admitted, their admission would not furnish a ground of reversal of the judgment.
The defendant asked the Court to instruct the jury that if the plaintiff knew of the defect in the bridge, and, nevertheless, passed over it, he could not recover for the injury he received. The Court refused this instruction. It expressed the law in the abstract, but, under the evidence, there was no error in refusing to give it. Instructions should be relevant, and applicable to the evidence in the cause. In this case, there was no evidence tending to show that the knowledge in question did, or might, exist. Indeed, no questions touching the point were asked by either party. The appearance, even, of the sidewalk or bridge, at this time, is not disclosed. When the plaintiff had proved that the sidewalk was, and had for a length of time been defective, that it belonged to the defendant, that
On the case, as presented to the jury, a verdict was found for the plaintiff, and we discover nothing in the record that will authorize us to reverse it. See The President, &c., of Mount Vernon v. Dusouchett, 2 Ind. R. 586,
Per Curiam.— The judgment is affirmed, with 5 per cent, damages and costs.
