City of Warsaw v. Dunlap

On Petition for a Rehearing.

Elliott, J.

We have given the argument of the learned counsel on the petition for a rehearing careful study, and, impressed by their earnestness, have again examined the questions presented by the record.

Negligence is never presumed, and a plaintiff who alleges it as a cause of action must establish the breach of duty which constitutes the negligence or a recovery will be denied. Wabash, etc., R. W. Co. v. Locke, ante, p. 404; Toledo, etc., R. W. Co. v. Brannagan, 75 Ind. 490.

*580If the evidence in this case does not establish a breach of duty, the verdict is not supported, and but one conclusion is logically possible, and that is that the judgment be reversed. Again and again have judgments been reversed because the evidence did not sustain the verdict. Cincinnati, etc., R. W. Co. v. Long, ante, p. 166; Crossley v. O’Brien, 24 Ind. 325 (87 Am. Dec. 329); Pittsburgh, etc., R. W. Co. v. Morton, 61 Ind. 539, 581 (28 Am. R. 682); Riley v. Boyer, 76 Ind. 152; Roe v. Cronkhite, 55 Ind. 183. Failure on one material point will ensure a reversal of the judgment. Ray v. Dunn, 38 Ind. 230.

Whether a verdict is sustained by the evidence is determined by applying the law to the facts it proves, since it is obvious that, if the evidence does not bring the case within the governing legal principle, the verdict is without support.

The principle which rules this case forbids a recovery unless it affirmatively appears that the municipal corporation had notice of the unsafe condition of the sidewalk, or was chargeable with negligence in not acquiring knowledge. A broad distinction is made by all the authorities between cases where the municipal corporation itself makes a sidewalk unsafe, and cases where it is made unsafe by a wrong-doer. This case belongs to the latter class, and the municipal corporation is not liable unless it was guilty of negligence, and guilty of negligence it could not be, unless some officer or agent had actual notice of the unsafe condition of the sidewalk, or it had been so long unsafe that it was the duty of the municipal authorities to take notice of its condition.

Municipal corporations are not liable for the acts of persons it licenses to use its streets, unless the thing authorized is intrinsically dangerous, or the municipal authorities have notice of the negligence of its licensees. Ryan v. Curran, 64 Ind. 345 (31 Am. R. 123); Dooley v. Town of Sullivan, ante, p. 451.

No liability was incurred by licensing the builders to use the sidewalks, even if it be conceded that the builders were *581negligent, for, in order to make the municipality liable, evidence of the negligence of the builders must be supplemented by evidence that the city authorities were also negligent.

There is not a scintilla of evidence tending to show that any officer or agent of the city had actual notice of the obstruction of the sidewalk. If there is liability at all, it must be because the sidewalk had been' so long unsafe that the municipal authorities were chargeable with notice. The question, therefore, is, does the evidence show that the city was guilty of negligence in not acquiring knowledge of the unsafe condition of the sidewalk ? If the evidence fails to • show that the city did not exercise ordinary care, then it fails to prove'negligence, for the degree of care required of the city is ordinary care. If the evidence fails on this one essential point it defeats the case as certainly and effectually as if it failed on every point, since proof of this point is absolutely essential to a recovery.

It is shown by uncontradicted evidence that work on the building was discontinued on the 10th day of November, 1883, and recommenced on the 19th day of that month. It is also shown that planks were placed across the walk on the day last named for the purpose of a runway on which to wheel bricks. During the daytime, while in actual use, there can, of course, be no plausible pretence that there was-negligence on the part of the city.

The only evidence that the plank over which the appellee fell was across the sidewalk on the night of the 19th is that it was there at about twenty minutes after six, as Miss Dodge testifies, and about six-thirty or seven o’clock, when the appellee fell over it.

The appellee’s witness, Frederick Clark, testified that there was no obstruction across the sidewalk on Sunday, the day before the accident, but that it was placed there on the morning the accident happened. This witness also testified that they.quit work at fifteen minutes after five o’clock, and that he thinks all obstructions were then removed. On this, the *582appellee’s evidence, we do not see how it is possible to maintain this verdict. Even if this evidence were not overthrown by the evidence introduced by the appellant there could be no recovery. At the most, the plank was across the sidewalk after work ceased only one hour and forty-five minutes, even if it be granted that it was left there when the workmen left the building at fifteen minutes after five o’clock. This certainly is not such a length of time as will charge the city with negligence in failing to take notice of the obstruction.

It must bo kept in mind that the use of the sidewalk was . a lawful one, and that this use did not make it intrinsically dangerous. As the use was neither dangerous nor unlawful, the municipality was not bound to keep constant watch over the builders. Its officers had a right, within reasonable limits, to presume that men engaged in a lawful work would do it in a lawful manner. They were not bound to anticipate negligence on the part of the men thus engaged.

In this case there was no express license granted the builders ; but if there had been, the city would not have been chargeable with notice of their negligence. Masterton v. Village of Mt. Vernon, 58 N. Y. 391; Sweet v. Gloversville, 12 Hun, 302; Dorlon v. City of Brooklyn, 46 Barb. 604; McDermott v. City of Kingston, 19 Hun, 198; Cohen v. Mayor of New York, 43 Hun, 345.

It is clear, therefore, that the only ground upon which it is possible to hold the municipality liable is that the time during which the obstruction was across the sidewalk was such as to make it negligence not to acquire knowledge, and we think the brief time that elapsed, even upon the supposition that the obstruction was left on the sidewalk at fifteen minutes after five o’clock, is not sufficient to warrant the conclusion that the city was guilty of negligence in not acquiring notice.

But the concession that the builders were negligent is wholly unwarranted. George Zumbrum, James- -Phillpot, William Hettinger, Robert Phillpot, Thomas Goodall and *583"William Kirtley, workmen engaged in the erection of the building, testify that there was a platform erected across the sidewalk on the morning of November 19th, and that it was taken away on quitting work. Two or more of these witnesses testified that they assisted in taking it away, and that no obstructions were left on the walk.

William Kirtley swore that he was the landlord of the American House, situated three doors distant from the Hotel Hayes, the building in process of erection, and that the platform was taken down on quitting work on the evening of the 19th of November. We can not yield to counsel’s contention that the jury were at liberty to disregard this positive testimony, for the only thing that has even the semblance of a contradiction is that there was a plank across the sidewalk •about an hour and fifteen minutes after the workmen left the building. Cincinnati, etc., R. W. Co. v. Long, supra; Palmer v. Chicago, etc., R. R. Co., ante, p. 250.

The fair and reasonable inference is that these men told .the truth, and that some wrong-doer placed the plank across the walk. If the obstructions were all removed on quitting work near nightfall, there was, under the authorities cited in our former opinion, no negligence. Dooley v. Town of Sullivan, supra.

Petition overruled.

Filed Dec. 10, 1887.