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benefit of the vendor." Bish. Eq. (2d Ed.) | by the vendor. If the contract can have 423; 2 Bouv. Law Dic., supra. See, also, this construction, then the plaintiff is enWiseman v. Beckwith, 90 v. Beckwith, 90 Ind. 185, 190; titled to property not in the condition it was Thompson v. Norton, 14 Ind. 187; Broker v. in when he contracted to purchase it, but an Scobey, 56 Ind. 588, 593; Caldwell v. Bank improved estate, improved at the expense of of Salem, 20 Ind. 294, 296; Webster v. Major, the vendor by the act of the city, which he 33 Ind. App. 202, 213, 71 N. E. 176. could not control, initiated after the contract was made. This construction would compel the vendor to pay out of the purchase money the cost of an improvement, which by so much has increased or will increase the value of the property, and the vendee would acquire property which he did not pay for."

[3] We take it, therefore, that this must be accepted as the sound doctrine to be applied to the facts in this case. The case of Carey v. Gundlefinger et al., 12 Ind. App. 645, 46 N. E. 1112, is in its facts almost identical with the case at bar. It is expressly held in this case that a lien for a street assessment is not one covered by the covenants of a warranty deed. The reasons given therefor are equitable and just, and are amply sustained by authority. The same rule must apply to sewer assessments.

cases.

It is earnestly insisted by appellants that the case of Horner v. Lowe, 159 Ind. 406, 64 N. E. 218, together with many authorities cited, supports their contention, and that the principles therein stated are applicable to the facts in this case. It is our opinion that The case of Gotthelf v. Stranahan, 138 N. the facts in Horner v. Lowe, supra, and other Y. 345, 34 N. E. 286, 20 L. R. A. 455, is an cases cited by appellant, are easily disinteresting case, and goes into a full discus- tinguishable from the facts in this case, and sion of the principles involved in this case. the doctrine here announced is not in conThe facts were as follows: The date fixed flict with the doctrine laid down in those by the contract for the conveyance of certain city lots with covenants against incum- [4] Appellants also insist that if appellee brances was postponed a number of times for Garner is to be relieved from the covenants the mutual accommodation of the parties. of warranty on his deed, the same rule must Finally the vendor tendered a conveyance be applied to appellants as to their covenants with covenants of warranty. Prior to that of warranty, as they conveyed the property time, and subsequent to the original contract, without knowledge of the existence of the assessments were made against the lots un-lien imposed thereon. We think, however, der the charter of the city in which they that the distinction is made clear in the were located, for public improvements. The cases cited and relied on by appellee that court held that such assessments were not where a lien is created by operation of law, incumbrances within the meaning of the con- and not by the act of the vendor subsequent tract, and that the vendor was not bound to to the execution of the contract, and prior warrant the title as against such assessments. to the execution of the deed, the rule above "The contract to convey free from incum- stated, invoked in the case at bar, applies, brances ordinarily has reference to incum- whereas if the lien has already attached brances or liens actually existing when the when the vendee acquires the property, and contract is executed, or thereafter created, he disposes of it by warranty deed with the or suffered by the act or default of the ven- lien unsatisfied, then his covenants of wardor. While the assessments in question con- ranty cover the lien so attached, and he is stituted, under the charter of Brooklyn, liens obliged under the rule to discharge it. on the lands assessed from the time of their confirmation by the common council, and are in a strict sense incumbrances thereon, we are of the opinion that they are not incumbrances within the meaning of the contract. They did not diminish the value of the subject of the contract. The plaintiff will acquire what the defendant intended to sell and what he expected to receive; and, but for the postponement of the time of the execution of the deed, the plaintiff would have taken his title before the assessments were laid. This incident ought not to impose upon the defendant a loss pro tanto of so much of the purchase money." In the same case (Appellate Court of Indiana, Division No. 1. it is also said: "It is impossible to suppose that the parties contemplated when the contract was executed that incumbrances created by the force of public law for improvements, initiated after the making of the contract and intermediate that date and the time fixed for the conveyance, should be paid

This being the settled law, no error was committed by the court in overruling appellants' demurrer to the special answer filed by Garner and Garner to their cross-complaint; neither did the court err in its conclusions of law.

Judgment affirmed.

(53 Ind. App. 555) DELAWARE & MADISON COUNTIES TELEPHONE CO. v. FLEMING. (No. 8,003.)

June 17, 1913.)

1. TELEGRAPHS AND TELEPHONES (§ 20*) FREEDOM FROM CONTRIBUTORY NEGLIGENCE -BURDEN OF PROOF.

plaintiff's horse caused by its becoming enIn an action for damages for injuries to tangled in a guy wire maintained by defendant telephone company in a street, plaintiff has

the burden of proving and alleging that he was demurrer are each assigned as error and refree from contributory negligence. lied on for reversal.

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[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 186-193; Dec. Dig. § 113.*] 3. NEGLIGENCE (§ 136*) -ACTIONS JURY QUESTION.

Ordinarily negligence is a question of fact for the jury to determine from all the evidence; but, where the facts are undisputed and admit of but one inference, then it is the duty of the court to say whether the inference drawn by the jury, or the court sitting as a jury, is authorized by law.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 4. TELEGRAPHS AND TELEPHONES (§ 10*) RIGHT OF TELEPHONE COMPANY TO STREETS.

ÚSE

Under the direct provisions of Burns' Ann. St. 1908, § 8696, subsec. 11, municipal corporations may authorize telephone companies to use its streets, but the right of the telephone company is subject to the primary use of the street for travel, and it should not obstruct or unnecessarily interfere with such use. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. 8

10.*]

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The allegations of the complaint necessary

to a presentation of the objections urged
against it are, in substance, as follows: The
appellant is a corporation and owns and op-
erates telephone lines. By virtue of an ordi-
nance and agreement with the city of El-
wood, Ind., it, for more than five years last
past, operated its telephone system within
the limits of such city, and for such purpose
had poles set along the streets thereof, to
which it attached and suspended wires and
cables for use in the transmission of tele-
phone messages to its patrons. During said
time it maintained one of its poles on the
inside of the curb on Twenty-Second street
at a point where the alley intersects said
street. About five years ago appellant care-
lessly and negligently attached a strong
steel wire, one-fourth of an inch in diameter,
to said pole about 28 feet above the ground
and extended said wire down to within about
18 inches of the ground and parallel with
the curb of said street and attached it to an
iron guy rod one inch in diameter, which rod
was securely anchored to a permanent fix-
ture buried in the earth at a point immedi-
ately inside of the curb on said street, 55
feet from the bottom of the pole to which
such wire was attached.
tended out of the ground about 18 inches,
Such guy rod ex-

and on the outer end of it there was a loop
through which the end of said wire was
drawn and bent back towards said pole to
which it is attached, and then wrapped back
on itself for several inches back from the end
of said guy rod. Such connection of the guy
rod with the guy wire was about 18 inches
from where said guy rod enters the ground
and about 22 feet above the ground. In
making the connection and splice of said wire
the end of the wire projecting about 11⁄2 inch-
and guy rod, it was so made that it left
es at right angles to the guy wire. Appel-

[Ed. Note.-For other cases, see_Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.*] Appeal from Circuit Court, Madison Coun-lant has maintained said guy rod and guy ty, Charles K. Bagot, Judge.

Action by James Fleming against the Deleware & Madison Counties Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Marcellus A. Chipman and Edgar E. Hendee, both of Anderson, for appellant. Henry C. Ryan, of Anderson, for appellee.

wire in such condition continuously for the last five years. Said guy wire is drawn tightly from said pole to its attachment in the ground, and its office and use is to support and sustain said pole to which it is attached and prevent the heavy telephone wires attached thereto and extending in the

opposite direction from causing such pole to sag. The construction and maintenance of HOTTEL, P. J. This is an appeal from a the guy wire as aforesaid was and is a judgment for $150 recovered by appellee in danger and a menace to the safety of peran action for damages on account of inju-sons and horses traveling along said street ries to his horse alleged to have been caused adjacent thereto, especially to horses that by appellant's negligence. might become excited and frightened and run The complaint is in one paragraph. A upon or against it and become entangled demurrer thereto was overruled, after which therewith. Said wire was unprotected and appellant filed an answer in denial. There was not covered in any way to prevent perwas a trial by the court and findings for sons or horses from running on or against it, appellee. A motion for new trial was over- and was so small that it would not attract ruled. This ruling and the ruling on said the attention of a horse approaching it, espe

[2] The complaint expressly avers that appellee, while leading his horse along, such street, was exercising reasonable and ordinary care in his management and control, and that he was "at all times free of negligence or fault that in any way contributed to the injury of said horse." Nothing is shown by the specific averments which negatives or destroys the effect of this general allegation. Hence the complaint is sufficient in this respect. Cleveland, etc., Co. v. Clark, supra, 97 N. E. 827-828, Warbritton v. Demorett, 129 Ind. 346, 352, 27 N. E. 730, 28 N. E. 613.

cially if he were excited and frightened. Said wire extends from the top of the pole to which it is attached to its anchorage in the earth parallel to said curb on the roadway of said street, and is 18 inches inside of the curb its entire length. On the - day of March, 1910, appellee was and still is the owner of a valuable horse worth $250, and ordinarily gentle and tractable, which he was leading along and over said street, with reasonable and ordinary care, when he came opposite said guy wire so negligently and carelessly constructed and maintained as aforesaid, when said horse became excited and frightened at some steam escaping from an engine in a machine shop situated on the opposite side of said street from said guy wire, and in its excitement and fear of said steam said horse shied and became unmanageable and ran and jumped across said wire and became entangled therewith, and said wire so mangled, cut, and tore said horse's legs and the flesh thereon that he was ruined and became utterly worthless. Appellee was exercising all reasonable and ordinary care in the management and control of said horse and was at all times free of negligence or fault that in any way contrib-red that in running the wire through the uted to the injury of said horse.

There are also averments charging the city of Elwood with knowledge of the existence of said wire and its condition, but a demurrer by the city was sustained, and appellee refused to plead further and permitted judgment to go against him in its favor. The city is not made a party to the appeal, and its connection with the case need not be

further noticed.

It is urged against the complaint that its averments show that the escape of the steam

which frightened the horse and caused him to jump across the wire was an independent proximate cause of his injury, and that the presence of appellant's wire was only a condition and not a proximate cause. Among the cases relied on to support this contention appellant cites and quotes from the case of P. H. & F. M. Roots Co. v. Meeker, 165 Ind. 132, 73 N. E. 253. This case has been overruled on the point here involved, and both reason and authority is against appellant's contention. King v. Inland Steel Co. (Sup.) 96 N. E. 337, 339, 340; Id. (Sup.) 97 N. E. 529; Balzer v. Warring (Sup.) 95 N. E. 257-260; Pittsburgh, etc., R. Co. v. Sudhoff, 173 Ind. 314, 90 N. E. 467-472; Cleveland, etc., Co. v. Clark, 97 N. E. 822, 829, 830, and cases there cited; Louisville Light Co. v. Hynes, 47 Ind. App. 507, 91 N. E. 962; Evansville, etc., Co. v. Allen, 34 Ind. App. 636, 73 N. E. 630.

[1] It is also urged that the complaint shows appellee guilty of contributory negligence. This being a suit for damages for injury to personal property, the burden was on appellee to allege and prove that he was free from any negligence contributing to such

It is also urged that no negligence is charged against the appellant, which can be said to be the proximate cause of the injury to the horse.

It is difficult to determine from the averments of the complaint just what its theory From the is as to the negligence relied on. averments above indicated it will be observed that it is charged that appellant "carelessly and negligently attached the guy wire," etc., but no causal connection is shown between the manner of attaching such wire and the injury to appellee's horse. True, it is aver

loop at the end of the guy wire, and in mak-
ing the connection and splice of the wire with
the rod, the end of the wire was allowed to
project at right angles to the guy wire, but
it is not shown that such projection had any-
thing to do with the injury to the horse, un-
less it can be inferred from the averments
that the horse became entangled in the wire
and it "so mangled, cut, and tore
his legs and the flesh thereon that he was
ruined and became utterly worthless."

It would seem from these averments, when

considered together, that it is the size, presence, and location of the unguarded guy wire, and not its condition or manner of attachment, which appellee relies on as furnishing the only cause, with which appellant was connected, that could be said to be a proximate cause of the injury to appellee's horse, and we are persuaded that the complaint proceeds upon the theory that appellant's negligence consisted in so constructing and maintaining its guy wire that it ran along and parallel with the street inside the curb and so near thereto and connecting with a guy rod so close to the ground that it was possible for a horse to get entangled therewith, and that the maintaining of a guy wire of such size, in such place and position with reference to the street, and without in any way protecting or covering the wire was in and of itself negligence. It is questionable whether on this theory the averments are sufficient to show negligence when taken in connection with the other averments showing the purpose and necessity for such wire in connection with appellant's telephone system; but assuming, without deciding, that the general charge of negligence in the manner of the

in the manner alleged are not overcome by | conceded by appellee, but it is insisted that the specific averments, we are confronted the guy wire should have been attached to a with the same question when we come to consider the sufficiency of the evidence to sustain the decision.

[3] Ordinarily negligence is a question of fact for the jury or the trial judge to determine from all the facts shown by the evidence affecting such question; but, where the facts are undisputed and admit of but one inference, it then becomes the duty of this court to say whether the inference drawn by the jury, or in this case by the trial judge, was authorized by the law. Western Union Telegraph Co. v. McDaniel, 103 Ind. 294, 299, 2 N. E. 709; Jenney, etc., Co. v. Flannery, 98 N. E. 424, 428; Indianapolis Traction Co. v. Holtsclaw, 41 Ind. App. 520, 528, 82 N. E. 986; Cleveland, etc., Co. v. Clark, supra, 97 N. E. 831; Indiana, etc., Co. v. Sullivan, 101 N. E. 401-406.

stub pole high enough above ground that neither person nor animal would come in contact therewith. While the evidence shows that a stub pole may be, and frequently is, used for the purpose of attaching a guy wire thereto, it also shows that it then becomes necessary to secure the stub pole by an additional wire or rod anchored in the ground.

There was expert evidence that the manner of attaching the guy wire adopted by appellant in this case was a usual and customary method and proper in all respects, except in the matter of the projection of the wire before referred to, which had nothing to do with the injury to the horse. This evidence was undisputed.

We think that the facts above indicated admit of but one inference, and hence the question of appellant's negligence, under the authorities before cited, is one of law and not one of fact. This exact question, so far as we have been able to ascertain, has never been decided by either of the courts of appeal of this state. Cases, however, which we think analogous have been determined by such courts. A distinction between the roadway and the sidewalk has been recognized and declared by the Supreme Court.

In the case of Weinstein v. City of Terre Haute, 147 Ind. 556, at page 559, 46 N. E. 1004, at page 1005, the Supreme Court said: "The statute (section 4398, Burns' R. S. 1894 [3361, R. S. 1881]) recognizes sidewalks even upon ordinary highways and makes it unlawful to ride or drive, not only upon a sidewalk of any town or village, but also 'upon any similar sidewalk for the use of foot passengers by the side of any public highway in this state, unless in the necessary act of crossing the same.' It is only reasonable that those who drive along the street in carriages or other vehicles should not deprive travelers on foot from the use of a narrow pathway on each side, where they may walk in safety from teams and free from the mud of the roadway; and 61⁄2 feet on each side of a 50foot street does not seem too great a space for such a use. And if such a space is not too great for the use of foot passengers, surely it cannot be unlawful to set a hitching post at the edge of such a walk." (Our italics.)

There was evidence supporting the averment that appellant had permitted the end of the guy wire to project out or up at the point of its connection with the guy rod, but there was no evidence that in any way connected such projecting wire with the injury to the horse. The horse was injured in the hock joint of the hind leg, and the point of contact with the wire was from two to four feet or more above the projecting end. There was some evidence that tended to show that the wire had been loose and sagged before the horse got his leg over it, but there was no evidence that showed or tended to show that the sagging of the wire had anything to do with causing the horse to get his leg over it, or with his becoming entangled therewith, or with his extricating his leg after he got it over the wire, or that such sagging in any other way had anything to do with the horse's injury. So in its last analysis the only evidence which the trial court had before it which showed, or tended to show, a proximate cause for such injury with which appellant could be said to be connected was that evidence which showed the size and presence of the unguarded guy wire in the place and position indicated. The manner and method of the placing and maintaining of this wire was undisputed. The wire was a fourth-inch wire attached at one end at or near the top of the pole to which appellant's telephone wires were suspended. From this point,' which was about 28 feet from the ground, it ran along and parallel with the street 18 inches inside of the curb in a direct line north and connected with a guy rod anchored in the ground about 55 feet from the bottom of said pole. The point of connection between the guy wire and the guy rod was about 18 inches above the surface of the ground. As alleged in the complaint, In the case of City of Vincennes v. Thuis, the purpose of this guy wire was to support 28 Ind. App. 523, 63 N. E. 315, this court held the pole which had suspended to it appel- that the proper place for a public water lant's telephone lines. A guy wire or sup- hydrant was between the sidewalk and the

In the case of Lostutter v. City of Aurora, 126 Ind. 436, 26 N. E. 184, 12 L. R. A. 259, the Supreme Court held that a municipal corporation was not guilty of maintaining a nuisance where it had constructed a platform around the mouth of a well dug in the street and caused a pump to be placed in it for the use of the public.

[4] The right of a telephone system to occupy the streets of a city as a proper street use has been expressly held by our Supreme Court and the courts of many other jurisdictions. Magee v. Overshiner, 150 Ind. 127, 137, 49 N. E. 951, 40 L. R. A. 370, 65 Am. St. Rep. 358, and cases cited. This right and its importance and benefit to the citizens of the numerous cities of our state has been expressly recognized by the Legislature of our state as evidenced by section 8696, Burns' 1908, subsec. 11, which provides that cities, by their proper authorities, may grant the use of their streets to telephone companies for the purpose of erecting and maintaining their poles and lines in and along such streets. Of course this use must be and always is granted with reference to the primary use of the street for passage of people and vehicles and should not obstruct or unnecessarily interfere with such primary use. It seems clear that every city should have a right "to determine what part of the nominal highway shall be devoted to the various purposes of passage, and upon such a subject the municipal discretion must prevail." Hendron v. Salt Lake City, 34 Utah, 65, 95 Pac. 646, 650, 131 Am. St. Rep. 827, and authorities there cited.

Appellant maintained the poles and lines, in question under the authority of an ordinance and agreement with the city of Elwood.

[5] The guy wire here involved was not in that part of the street which such city had determined should be devoted to the passage of horses and vehicles, and hence could not be said to be an obstruction therein. On the contrary, it was located in that part of the street recognized by the above authorities as being the proper place for its location.

We think it must follow from the authorities cited that the evidence in this case fails to show appellant guilty of any actionable negligence that can be said to have been the proximate cause of the injury to appellee's horse and that for this reason the motion for a new trial should have been sustained.

Judgment reversed, with instructions to the trial court to sustain the motion for new trial, with leave to appellee to amend his complaint, if he so desires, and for such other proceedings as may be consistent with this opinion.

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no ruling was made on the demurrers in the other.

Error, Cent. Dig. §§ 1226-1238, 1240, 1417[Ed. Note.-For other cases, see Appeal and 1425; Dec. Dig. §§ 193, 242.*] 2. APPEAL AND ERROR (§ 912*) — PRESUMP

TIONS RULES OF CIRCUIT COURT.

Where a motion for change of venue was overruled on the ground that it was not filed court are not set out in the bill of exceptions, within the rules, and the rules of the circuit it will be presumed that the rule justified the denial of the motion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3689; Dec. Dig. § 912.*1 3. TIME (§ 9*) - COMPUTATION-MOTION FOR CHANGE OF VENUE-"BETWEEN."

Under a rule of the court requiring a motion for a change of venue to be filed in time to leave five full days between the day of filing and the day of trial, a motion filed on December 8th in a case set for trial on Decem. ber 13th is not in time, since "between," when used to define a period of time bounded by two other periods, excludes the day specified, both at the beginning and at the end of the period (citing Words & Phrases, vol. 1, p. 765).

[Ed. Note.-For other cases, see Time, Cent. Dig. §§ 11-32; Dec. Dig. § 9.* For other definitions, see Words and Phrases, vol. 8, p. 7590.]

4. COURTS (§ 80*) - RULINGS-REGULATING MOTIONS FOR CHANGE OF VENUE.

The courts have power to adopt and enforce reasonable rules not inconsistent with the statutes regulating applications for change of venue.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 282-292; Dec. Dig. § 80.*] 5. CONTINUANCE (§ 46*)-ABSENT WITNESS

AFFIDAVIT-DILIGENCE.

An affidavit in support of a motion of continuance on the ground of the absence of a witness, which was filed on the day of trial the state and could not be located, so that his and merely stated that the witness was out of deposition could be taken, until shortly before the trial, but which shows no diligent effort to locate the witness, is not sufficient.

Cent. Dig. §§ 132-140; Dec. Dig. § 46.*] [Ed. Note.-For other cases, see Continuance,

Appeal from Circuit Court, Henry County; Ed Jackson, Judge.

Action by Otto Hoffman and others against Marshall A. Fry and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Brown & Beard, of New Castle, for appellants. Horace G. Yergin and Adolph Rogers, both of New Castle, for appellees.

LAIRY, J. Appellant Marshall A. Fry, having entered into two separate contracts with the town of New Castle for the im

provement of portions of Broad street in said town, sublet the excavating to be done under such contracts to appellees at the agreed price of 25 cents per cubic yard. After appellees had performed a part of the work under each contract, a misunderstanding arose, and the contractor refused to permit appellees to finish the work. Certain payments having been made, a dispute arose; appellees claiming a balance due, and appel

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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