City of Warsaw v. Dunlap

Elliott, C. J. The appellee'was injured by a fall while walking along one of the streets of the city of Warsaw ■during the night-time, and his claim is that his fall was ■caused by a plank projecting across the sidewalk from the walls of a building in course of erection. The evidence shows that the accident occurred after dark ■on the night of the 19th of November, 1883, and that the plank was across the sidewalk on that night. It is shown that work on the building was discontinued on the 10th of November, 1883, and resumed on the 19th day of that month. It is also shown by all the witnesses who testify on that subject, that a platform', or runway, was placed across the sidewalk on that day for the purpose of conveying bricks to the walls of the buildingj but all who testify on that subject assert that the planks were all removed from the sidewalk on quitting work late in the evening. There is no conflict of evidence upon this point that we can discover after a careful examination of the record. There is a distinction between a work undertaken by the municipal corporation itself and work undertaken by another, as there is between work dangerous in itself and work not necessarily dangerous. In this instance the work was not undertaken by the corporation, nor was it dangerous in itself. It is proper and lawful for a municipal corporation to permit its streets to be temporarily used for building purposes, and, in permitting the use of its streets for building purposes, the city of Warsaw was not guilty of any actionable wrong. It could only be guilty of a wrong by omitting to use reasonable care and diligence to keep its streets free from obstructions. A municipal corporation is not an in■surer of the safety of its streets, although it is bound to [578] exercise reasonable care and diligence to keep them in a reasonably safe condition for use. 2 Dillon Munic. Corp., section 1019. ¥e think the evidence in this case fails to show that the city was guilty of any actionable negligence. The evidence, as we have seen, shows that the plank was removed from the sidewalk before nightfall, and the only fair inference is that it was placed across the sidewalk by some wrong-doer, and in such a case the city would not be liable. Doherty v. Waltham, 4 Gray, 596; Shearman & R. Neg., section 360. But, if this be conceded not to be the just inference, still,, the city can not be held liable, because there is no evidence of actual notice, and the time elapsing between the hour that the workmen removed the planks and that at which the accident happened was not sufficient to charge the city with notice. Where the obstruction which causes the injury is not placed in the street by the city itself, there must be actual notice, or the obstruction must have remained in the street, such a length of time as to make it the duty of the corporate authorities to take notice of its existence. City of Lafayette v. Blood, 40 Ind. 62; City of Evansville v. Wilter, 86 Ind. 414; Corporation of Bluffton v. Mathews, 92 Ind. 213; City of Madison v. Baker, 103 Ind. 41; 2 Dillon Munic. Corp. (3d ed.), section 1025. In the case before us there is really no evidence at all as. to how long the plank had been across the sidewalk before the appellee fell over it; for aught that appears it may have been there for only a few minutes, and, certainly, the city could not be charged with notice under such circumstances. But, if it be granted that it was placed there immediately after the workmen left the building on the 19th of November, still, the time was not sufficient to charge the city with notice. City of Fort Wayne v. DeWitt, 47 Ind. 391; Higert v. City of Greencastle, 43 Ind. 574. In Kunz v. City of Troy, 104 N. Y. 344, it was said: “ Where the question of negligence, in not removing an obstruction unlawfully placed in the street by third persons, de [579] pends upon implied notice, what is a reasonable time from which notice is to be inferred, must be determined upon all the circumstances, giving weight to the consideration that municipal authorities with their multiplied duties can not be expected to act with the promptness and celerity of individuals in conducting their private affairs.” Filed April 27, 1887. We think this is a just observation, and, applying it to the case before us, we hold that the time which elapsed between the accident and the placing of the obstruction across the sidewalk was not sufficient to authorize the jury to imply notice on the part of the municipal authorities. The appellant filed an answer to the original complaint, but did not refile it to the amended complaint afterwards filed by the appellee. The case was, however, tried upon the theory that there was an answer of general denial, and the court so instructed the jury. It is, therefore, too late for the appellee to insist that there was no answer to his complaint. If he desired to make such a question he should have moved in the trial court for judgment on the pleadings, or in some other appropriate method have presented the question to the trial court. Buchanan v. Berkshire, etc., Ins. Co., 96 Ind. 510, and cases cited p. 516; Trentman v. Eldridge, 98 Ind. 525; Hartlep v. Cole, 101 Ind. 458. Judgment reversed.-