Board of Commissioners v. Dombke , 94 Ind. 72 ( 1884 )

Elliott, J.

The appellee filed a verified claim in the form of a complaint before the board of commissioners of Porter county, alleging that he had received injuries because of the negligence of the county authorities in suffering a bridge of the county to become unsafe. The decision of the board was against him, and he appealed to the circuit court and recovered judgment.

No attack was made on the complaint until after verdict in the circuit court, when the appellant moved in arrest of judgment. It is objected to the complaint that it does not show that the injury occurred without the negligence or fault of the appellee. We are not altogether clear that the objection is not ill in point of fact, for there are facts stated which inferentially show that the injury was attributable solely to the negligence of the appellant. But we do not deem it necessary to pass upon that question.

It will be observed that the complaint was filed in the commissioners7 court, and our decisions establish the rule that no formal pleadings are necessary in such cases. In the case of Board, etc., v. Ritter, 90 Ind. 362, the question is thoroughly discussed and the cases reviewed, and it is held that the rules of pleading which prevail in the courts of superior jurisdiction do not apply to complaints in the commissioners’ court. In the complaint before us there are facts sufficient to fully apprise the appellant of the nature of the appellee’s claim, and to so fully exhibit the character of the controversy as to make a judgment on it a bar to any other action for the same cause. We are satisfied that, under the decision in the case cited and the many decisions .there referred to, the complaint is good.

Where a person is suffering from an injury caused by another’s negligence, it is proper to prove what was said at the time concerning the character of the pain or hurt. It is not, however, competent to give a narrative of a past occurrence. It was competent to show the character of the highway and its frequent use by travellers at the place where it connected with the bridge. It was competent for the purpose of enabling the jury to get an accurate knowledge of the place where the injury occurred.

Judgments are not reversed because the trial court permits leading questions to be put to a witness, unless it clearly appears that there was an abuse of discretion working injury to the complaining party. In the present case there was no abuse of discretion.

A person injured by the negligence of another may show the character of the injury as it exists at the time of the trial. It is settled law that a plaintiff in such a case may recover for injuries of a permanent character.

The trial court did right in directing the jury that the county was charged with the duty of maintaining its bridges in a reasonably safe condition for travel. Board, etc., v. Legg, 93 Ind. 523. It is true that a county is not an insurer of the safety of its bridges, but it is also true that the county is bound to use ordinary care and diligence in constructing and maintaining them.

The definition of ordinary care given by the court is that approved by the authorities. It is in these words: “ What constitutes ordinary diligence depends largely on the circumstances of the given case. The general rule of law, however, is that ordinary diligence is' that degree of care and prudence which a discreet and cautious person would use in his- own affairs were the whole loss or risk to be his own. And this degree of care should be reasonably proportioned to the magnitude of the injury likely to result from the neglect.”

The instruction on the subject of notice to the county is unobjectionable. It is not essential that the county officers should have actual notice of the unsafe condition of the bridge, but if. the defect has existed such a length of time as that they ought to have taken notice of it, the law will charge them with notice.

What is such a length of time as will charge public officers with notice of a defect in a bridge or highway must, in a great measure, depend upon the circumstances of the particular case, and must, in most cases, be a question of fact to be submitted, under proper instructions, to the jury. It is obvious that a greater length of time should be required in oases of country bridges than in cases where the bridge belongs to a town or city, because it can not be expected that the same oversight can be maintained by county officers whose jurisdiction extends over a large extent of territoiy, as by city or town officers whose jurisdiction is over a limitéd territory compactly settled, and who are much better provided with means for ascertaining defects in bridges than county officers.

Filed March 8, 1884.

The court erred in instructing the jury as to the effect of the appellee’s knowledge of the unsafe condition of the bridge, but the error was in favor of the appellant. It is quite well settled that a person who knows of the dangerous condition of a bridge or highway may, if the danger is not of such a character that a prudent man would not encounter it, use the bridge in a proper manner, but if he does undertake to use it, he must exercise care proportioned to the known danger. Board, etc., v. Legg, supra; Nave v. Flack, 90 Ind. 205; Murphy v. City of Indianapolis, 83 Ind. 76; City of Huntington v. Breen, 77 Ind. 29; Toledo, etc., R. W. Co. v. Brannagan, 75 Ind. 490; Palmer v. Dearing, 93 N. Y. 7.

We can not examine the instructions said to have been asked by the appellant. There are two reasons for this conclusion : 1st. It does not appear that they were asked at a proper time; 2d. They are not in the record except as embodied in the motion for a new trial, and are not properly before us.

Judgment affirmed.