The City of Warsaw v. Dunlap.

E. Haymond and L. W. Royse, for appellant.

J. S. Frazer, W. D. Frazer, S. P. Oyler and W. A. Johnson, for appellee.

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 building, 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 insurer of the safety of its streets, although it is bound to VOL. 112.-37

The City of Warsaw v. Dunlap.

exercise reasonable care and diligence to keep them in a reasonably safe condition for use. 2 Dillon Munic. Corp., section 1019. We 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. De Witt, 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

The City of Warsaw v. Dunlap.

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.”

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.

Filed April 27, 1887.

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.

The City of Warsaw v. Dunlap.

If 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

The City of Warsaw v. Dunlap.

negligent, 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