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by coming in contact with a live wire, belong-| tion, that they are liable for acts of mising to appellee, which had fallen from its feasance positively injurious to individuals, electric light pole in the adjoining street. done by their authorized agents or officers, A demurrer was sustained to the complaint, in the course of the performance of corporate and, from the judgment which followed, ap- powers constitutionally conferred, or in the pellant appeals.

execution of corporate duties, and it is the It is contended by counsel for appellee almost, but not quite, uniform doctrine of that, as it does not appear that the city the courts that they are also liable where made any use of said system other than for the wrong resulting in an injury to others the purpose of lighting its streets, it was consists in a mere neglect or omission to acting in a governmental capacity, and is perform an absolute and perfect (as distintherefore not to be held liable for the negli- guished from a legislative, discretionary, gence of its employés and servants in the quasi judicial, or imperfect) corporate duty, management of the property. Municipal owing by the corporation to the plaintiff, or corporations proper, as cities and towns, do in the performance of which he is specially not enjoy as extended immunity from lia- interested." 2 Mun. Corps., § 966. As far bility ex delicto as do public quasi corpora- back as Ross v. City of Madison, 1 Ind. 281, tions, which are mere subdivisions of the 48 Am. Dec. 361, this court declared that state, organized for the purpose of admin- “it may also be considered as settled that istering the local affairs of government. . municipal corporations are responsible, to As it is possible, however, to devolve upon the same extent, and in the same manner, as cities and towns duties which they admin- natural persons, for injuries occasioned by ister solely for the public good, it follows the negligence or unskillfulness of their that, with respect to such duties, they are agents in the construction of works for the regarded as acting on behalf of the state, benefit of the cities and towns under their and not in their private or corporate capac- government." In four instances this declarity. Speaking in general terms, it may be ation of the law has been approved by this said that the duties which municipalities court. City of Logansport v. Wright, 25 Ind. perform with respect to the public health, 512, 515; Stackhouse v. City of Lafayette, charities, and schools, in the protection of 26 Ind. 17, 22, 89 Am. Dec. 450; Roll v. property against fire and in the maintenance City of Indianapolis, 52 Ind. 547, 549; City of the peace, are ordinarily regarded as per- of Greencastle v. Martin, 74 Ind. 449, 452, formed as representatives of the general pub-39 Am. Rep. 93. As was tersely stated in lic, and in such cases cities and towns en- Jones v. City of New Haven, 34 Conn. 1: joy the same immunity from action ex "Where judicial duty ends and ministerial delicto as does the state. We may at once duty begins, there immunity ceases and liaput aside, as not involved in this case, all bility attaches.” Counsel for appellee conquestion concerning the nonliability of mu- cede that if the wire had fallen in a pubnicipal corporations for their acts or omis- lic street, and the city knew, or ought to sions in respect to legislative, discretionary, have known, of its defective condition, appeland quasi judicial powers. The omission in lee would have been guilty of negligence in question involves the failure to perform a failing to keep the street safe, but it is to ministerial act, and, if it was a corporate be remembered that the duty of a city or duty, the municipality was guilty of a tort. town in respect to the public ways therein It was said by Campbell, J., in Sheldon v. grows out of the exclusive power which the Kalamazoo, 24 Mich. 383, 385: "The doc- municipality possesses over such ways trine is entirely untenable that there can coupled with the power of taxation for be no municipal liability for unlawful acts general purposes. Grove v. City of

vFort done by municipal authorities to the preju- Wayne, 45 Ind. 429, 15 Am. Rep. 262; dice of private parties. In this respect, pub- Yeager v. Tippecanoe Township, 81 Ind. 46; lic corporations are as distinctly legal per- Elliott, Roads and Streets, § 611. If the sons as private corporations. When the act city would be liable for the omission of a done is in law a corporate act, there is no duty in the case mentioned, a fortiori, ought ground upon reason or authority for holding it to be liable in a case involving the elethat if there is any legal liability at all aris- ments of a trespass? ing out of it, the corporation may not be There is really but one question in this answerable. There is no conflict whatever case, and that is, was the omission a corporin the authorities on this head.” Judge ate dereliction, or was appellee's act in proDillon, who has been at considerable pains viding a public lighting system a governto cast into doctrine the decisions of the mental undertaking? In the determination courts relative to municipal responsibility of this question it is proper to consider the for tort, says: “As respects municipal cor- manner in which the power was conferred, porations proper, whether specially char- the obligations which naturally flow from tered or voluntarily organized under general proprietorship, and the purpose for which acts of the character before alluded to, the power was granted and exercised. The it is, we think, universally considered, even city was under no obligation to light its in the absence of a statute giving the ac- streets. It enjoyed that authority, but the exercise of the power was wholly a matter use one's property as not to injure others', of its own volition. Section 4301, Burns' forbids other application or use of the rights Ann. St. 1901; City of Indianapolis v. Scott, and powers conferred.” It is perhaps as 72 Ind. 196; Tiedeman, Mun. Corps., § 344a, much upon the ground of proprietorship as and cases cited. As neither the letter nor any other that it was held in Twist v. the implications of the statute has made Rochester (Sup.) 55 N. Y. Supp. 850, affirmed the lighting of streets a governmental duty, in 165 N. Y. 619, 59 N. E. 1131, that a and as the city derives a benefit in its cor- city was liable for permitting a patrol wire, porate capacity, as well as a local benefit, heavily charged with electricity, to fall and from the exercise of the power, the fact that remain in a public street. See, also, Eastit was voluntarily exercised is an important man v. Meredith, 36 N. H. 281, 72 Am. Dec. circumstance. The proposition finds illus- 302; Thayer v. Boston, 19 Pick. (Mass.) 511, tration in a number of cases where the bene- 31 Am. Dec. 157. We may, in this connecfits might be said to be in a degree public, tion, mention that, in City of Greencastle v. but where there was nevertheless room for Martin, 74 Ind. 445, 39 Am. Rep. 93, it was the supposition that the local advantage to held that the city was properly charged with the corporation or its inhabitants was a mov- negligence in the management of its pound, ing consideration in the voluntary assump

although the ordinance providing for the tion of the power. Thus, in Riddle v. Pro- impounding of animals was an exercise of prietors of Locks & Canals, 7 Mass. 169, 187, the police powers. It was decided in City 5 Am. Dec. 35, Parsons, C. J., in pronounc- of Lafayette v. Allen, 81 Ind. 166, that the ing the opinion of the court says that it is complaint therein, which was by a person one of the maxims of the common law "that who had been employed as engineer of the a man specially injured by the breach of waterworks of the municipality, for injuries duty in another shall have his remedy by received by the explosion of the boiler used action. If the breach of duty be by an

in pumping water into the city water pipes, individual, there is no question; and why stated a cause of action, although it is to be should a corporation, receiving its corpor

noted that there was no allegation in the ate powers and obligated by its corporate complaint that the city derived a profit from duties with its own consent, be an excep

the sale of water. tion where it has, or must be supposed to

Coming to the purpose for which the power have, an equivalent for its consent?” It to erect an electric light plant was granted, was held, in Oliver V. City of Worcester, it must be admitted that public lighting 102 Mass. 489, 499, 3 Am. Rep. 485, that serves a governmental purpose, at least in an the city was liable for a defect in a path in incidental way, in that it is a check upon the public common. Gray, J., in that case crime and immorality, but the element of said that cities may be liable "for acts done local convenience to the inhabitants and the in what may be called their private char- extent to which such lights protect the municacter, in the management of property volun- ipal treasury against damage suits, because tarily held by them for their own immediate of streets which have become temporarily profit or advantage, although inuring, of or permanently unsafe, affords a very clear course, ultimately to the benefit of the pub- basis for the assertion that such lights are lic." In Jones v. City of New Haven, 34 a municipal utility. The fact that a city or Conn. 1, the city was held liable for the town, pursuant to statute, voluntarily confailure to remove a decayed limb of a tree structs and maintains a work from which it in the public square, whereby a person was derives a revenue has frequently been reinjured, the corporation having properly ferred to as one of the markings of a munitaken upon itself the duty of caring for the cipal undertaking. No case, however, has trees. We shall not dwell at length upon come to our notice in which this element the obligations of proprietorship. Where a has been held essential to liability, but there city has seen fit to acquire title to prop- are many authorities that either directly or erty in the management of which it is with- in effect uphold the opposite view. Twist out let or restriction it would seem peculiar- V. City of Rochester, supra; Missano V. ly just, at least where the property in part Mayor, 160 N. Y. 123, 54 N. E. 744; Jones v. serves some municipal purpose, that there City of New Haven, 34 Conn. 1; Barney should be devolved upon the municipality | Dumping Boat Co. v. Mayor (C. C.) 40 Fed. that fundamental obligation of ownership 50; Eastman v. Meredith, supra; Thayer v. which finds expression in the maxim, "sic Boston, supra; Oliver v. City of Worcester, utere tuo ut alienum non lædas.” As said 102 Mass. 489, 499, 3 Am. Rep. 485; Dickby Mr. Justice Field, in Baltimore, etc., R. inson v. City of Boston, 188 Mass. 595, 75 Co. v. Fifth Baptist Church, 108 U. S. 331, N. E. 68, 1 L. R. A. (N. S.) 664; Wagner v. 2 Sup. Ct. 728, 27 L. Ed. 739: "grants of City of Portland, 40 Or. 389, 60 Pac. 985, privileges to corporate bodies confer no 67 Pac. 300; Webb's Pollock on Torts, 69; license to use them in disregard of the Jones, Neg. Mun. Corps. $ 150; Williams, private rights of other persons. The great Neg. Mun. Corps. $ 31.

Neg. Mun. Corps. $ 31. At least as to propprinciples of the common law, which is equal- erty voluntarily held, if the exercise of the ly the teaching of Christian morality, so to power confers a benefit upon the people of

the community in their local capacity, or if its streets in fit and suitable condition for it is a means to the attainment of some munic- the use of those who resort to them."

Folipal end, we are of opinion that the corpora- lowing the last-cited case it was held, in tion is held to the exercise of due care con- Missano v. Mayor, 160 N. Y. 123, 54 N. E. cerning such property. The blending of the 744, that the city was liable for the neglipowers of local sovereignty and corporate ca- gence of the driver of an ash car who was empacity in one does not destroy the clear and ployed in the street cleaning department. well-settled distinction which the cases main- A case which is precisely like this in printain, nor does the confusion render the pro- ciple is Dickinson v. City of Boston, 188 cess of separation impossible. Western Sav- .

Mass. 595, 75 N. E. 68, 1 L. R. A. (N. S.) ings Fund Soc. v. Philadelphia, 31 Pa. 175, 664. In that case the city had by ordinance 72 Am. Dec. 730; Bailey v. Mayor, 3 Hill established what it termed a lamp depart(N. Y.) 531, 38 Am. Dec. 669. In the case ment, that included the lamps and other last cited, which is a leading one upon the property used by the municipality in its sysgeneral subject under discussion, the ques- tem of street lighting, and the management tion was involved as to the liability of the of the department had been intrusted to an city of New York for the negligent construc- officer. This was done under a statute which tion of a dam by its water commissioners. authorized, but did not require, the city to A point of difficulty was presented, in that maintain lamps to light its streets. An acsuch commissioners were designated by the tion was brought to recover for injuries reLegislature, but the city had accepted the ceived by the plaintiff's intestate, while on benefit of the act. In response to the argu- her own premises, owing to the fall of i ment that the undertaking was governmental defective lamp-post which stood in the public in its character, Nelson, C. J., said: "The way. Answering the objection that the of. argument of the defendant's counsel con- ficer in charge of the department was a pubfounds the powers in question with those

lic officer for whose negligence the city was belonging to the defendants in their character not responsible, the court said: "In suits as a municipal or public body-such as are for damages caused by defects in streets, granted exclusively for public purposes to which at night may become dangerous to counties, cities, towns, and villages, where the travelers because they are dark and unlightcorporations have, if I may so speak, no priy

ed it uniformly has been held that, as a city ate estate or interest in the grant. As the or town is under no statutory requirement to powers in question have been conferred upon light them, an omission to do so does not one of these public corporations, thus blend

constitute negligence. Sparhawk v. Salem, ing in a measure those conferred for private 1 Allen (Mass.) 30, 32, 79 Am. Dec. 700; Ranadvantage and emolument with those already

dall y. Eastern Railroad Co., 106 Mass. 276, possessed for public purposes, there is some 8 Am. Rep. 327; Lyon v. Cambridge, 136 difficulty, I admit, in separating them in the

Mass. 419; Spillane v. Fitchburg, 177 Mass. mind, and properly distinguishing the one 87-88, 58 N. E. 176, 83 Am. St. Rep. 262. class from the other, so as to distribute the But if, under no obligation imposed by statresponsibility attaching to the exercise of ute, the defendant undertook this service each. But the distinction is quite clear and for the general convenience of its citizens, well settled, and the process of separation

and travelers within its borders, it also by practicable. To this end, regard should be so doing derived an incidental benefit by the had, not so much to the nature and character protection thus afforded of decreasing the of the various powers conferred, as to the probability of suits against it for defective object and purpose of the Legislature in con- public ways, under Rev. Laws, c. 51, $$ 1, ferring them. If granted for public purposes

18. An unlighted public way, indeed, may be exclusively, they belong to the corporate body dangerous when used at night, though not in its public, political, or municipal character. thereby rendered defective. If, however, it But if the grant was for purposes of private is out of repair, and this condition has been advantage or emolument, though the public

undiscovered or, if discovered, not remedied, may derive a common benefit therefrom, the the probability that travelers using it would corporation, quoad hoc, is to be regarded as

be less likely to be injured when lighted a private company." In Barney Dumping

than if unlighted is apparent and appreciable. Boat Co. v. Mayor, supra, the question arose It was unnecessary for the plaintiff to show as to the liability of the city of New York for that any direct commercial profit had been the negligence of persons in charge of a tug derived. The indirect benefit thus conferred used by the city in connection with the clean- supplied a sufficient motive for the defendant's ing of its streets. Judge Wallace, in refer- action. Having voluntarily undertaken the ring to the duties of the street commissioner, enterprise for its private benefit, and not said: "His duties, unlike those of the of- acting in the performance of any public duty, ficers of the departments of health, charities, it is liable for negligence in the management fire, and police, although performed inci- of its corporate property, when used for such dentally in the interest of the public health, purpose.

If the defendant lighted are more immediately performed in the in- its streets as a matter of convenience and terest of the corporation itself, which is safety for those having occasion to use them charged with the obligation of maintaining at night, without being required by law to






undertake the performance of such a duty, light of full discussion, would be at once the superintendent of lamps for this purpose to correct the court below in what was evibecame its servant, for whose negligent con- dently its misconception of the law of the duct in their maintenance it was respons- case, to the end that in this controversy ible."

justice may be administered, to borrow from We are satisfied that we are within the au- the sounding phrases of the Constitution, thorities in holding, as we do, that a city or completely and without denial, speedily and town is answerable ex delicto for any direct without delay. The general authority to invasion of the rights of third persons in review and revise necessarily includes the the management of its public lighting system, right to enforce the law and to administer While the doctrine of immunity of municipal justice, and the court, upon an investigation corporations in matters purely governmental of the record, may so frame its judgment as is too well established upon the authorities to prevent the defeat of justice by technical to be shaken, yet we are of opinion that and arbitrary rules. It is a rule, which public policy requires that the doctrine is also applicable to appellate tribunals, that, should be kept strictly within limits, to the if a court acquires jurisdiction for one purend that, so far as possible, corporate lia- pose, it will retain it for all, and "our Code bility may prompt those charged with re- means that this court shall decide upon the sponsibility in the government of cities and substantial merits of a controversy where towns to be alert to prevent wrongs to it can properly be done.” Feder v. Field, third persons in the maintenance of munici- 117 Ind. 386, 20 N. E. 129; Elliott's App. Proc. pal property. The point is made, however, § 18. Many cases are to be found in the that although it appears that the fall of the books in which courts of appellate jurisdicwire was the proximate cause of the death tion, in affirming judgments, have, in order of appellant's intestate, and that said wire to protect the evident equities of one of the had become weak and rotten, in which re- parties, added some restrictive provision, or spect appellee is charged with negligence, added to the judgment of affirmance an oryet it is not alleged that the wire fell by der remanding the cause to the court below, reason of such defective condition. Although either for the purpose of amending the decit is clear from a reading of the complaint laration or the plea, or for some other action that this was an assumed fact, yet the omis. to be taken in the trial court. Fidelity, etc., sion of the allegation renders the complaint | Ins. Co. v. McClain, 178 U. S. 113, 20 Sup. insufficient, and an affirmance must follow. Ct. 774, 44 L. Ed. 998; Matter of Ingraham,

In passing, as we have, upon the substan- 64 N. Y. 310; Piper v. Hoard, 107 N. Y. 73, tial question in this case, whether appellee 13 N. E. 632, 1 Am. St. Rep. 785; Johnson enjoyed an immunity from liability in the v. Elkins, 23 App. D. C. 486; Witty v. Highoperation of its electric lighting system, we tower, 12 Smedes & M. (Miss.) 478; Manns have decided the sole question argued by v. Flinn's Administrator, 10 Leigh (Va.) 93; appellant's counsel, as well as the first and Campbell v. Hughes, 12 W. Va. 183; Gill v. principal question discussed by counsel for Rice, 13 Wis. 613; Van Orman v. Spofford, appellee. We have not failed to consider etc., 20 Iowa, 215; McDonald v. Cruzen, 2 whether, since the judgment must be affirmed, Or. 259; Powell v. Dayton R. Co., 14 Or.

. we ought not to pass over what appears to be 22, 12 Pac. 83. And, see, Koch v. Purcell, the real controversy, that of niunicipal lia- 45 N. Y. Super. 162. As said in Powell bility, ex delicto in such cases, and base our v. Dayton R. Co., supra: "This discretion, decision on the clear but narrow ground of a of course, is a judicial discretion,-not arbifailure to show that the negligence and the trary, and is always to be exercised in furresult stood in the relation of cause and

therance of justice." effect. After much consideration, however,

There is no occasion in this case for an we have arrived at the conclusion that we order in the nature of a procedento, as the may with propriety, and that we ought in claim is not barred by the statute of limitajustice, to decide the real question in the tions, but, within the principle of the procase. In no instance is this court disposed cedure just indicated, we regard ourselves to decide moot questions, or controversies as warranted in disposing of the essential relative to rights in actions which may sub

question concerning which the parties have sequently be brought, but in this case, find-challenged the consideration and judgment ing that the main question is the threshold

of the court. one, that it is the only one which admits of Judgment affirmed. serious disagreement, and that the complaint is so framed as to show that it was the pur

(167 Ind. 193) pose to charge that the wire fell by reason of the defect, so that it is clear that the


APOLIS & N. W. TRACTION CO. (No. missing averment will be supplied—we con

20,880.) ceive that our duty is not done in disposing of the case solely on said point and compel

(Supreme Court of Indiana. Oct. 11, 1906.) ling appellant to await the time necessary to


ROAD CROSSING-INTERLOCUTORY ORDERS. dispose of a second appeal, when to decide

Under Acts 1903, P. 125, C. 59 (Burns' the real question now, in its order, in the Ann. St. Supp. 1905, § 5464a) supplementary

to Acts 1901, p. 461, c. 207 (Burns' Ann. St. 1901, 5468a et seq.), relating to interurban railways crossing steam railroads at grade, and permitting an appeal from a decision adverse to the objections of the company whose way is crossed, to the point of crossing, under the restrictions provided for appeals in civil cases, an appeal from an order fixing the point of crossing is an appeal from an interlocutory order within Burns' Rev. St. 1901, § 659, and must be dismissed where appellant has failed to comply with the procedure required in such an appeal.

Appeal from Circuit Court, Montgomery County ; Jere West, Judge.

Condemnation proceedings by the Indianapolis & Northwestern Traction Company against the Terre Haute & Logansport Railway Company. From an order fixing the point of crossing, the defendant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Dismissed.

Jno. G. Williams and Thomas & Foley, for appellant. Pierre Gray, for appellee.


ty. Appellant appeared to the proceeding, ci

GILLETT, J. Appellee, interurban railroad company, instituted this proceeding against appellant, a steam railroad company, to obtain by condemnation the authority to cross at grade the right of way and tracks of the latter, at a point in Montgomery coun. , and filed objections to the proposed point of crossing. There was a hearing on said objections before the Montgomery circuit court, which resulted in an order, entered on the 25th day of June, 1904, fixing the point of crossing at the place proposed in appellee's instrument of appropriation. Appellant filed a motion for a new trial, which was overruled, and an exception was reserved. Such proceedings were afterwards had that appraisers were appointed, who returned an award of damages in favor of appellant, and, within the time allowed by law, the latter filed exceptions to the award. The record does not show whether there has been a final judgment on such exceptions. It appears that, after the overruling of its motion for a new trial, appellant prayed an appeal to the Appellate Court, which was in terms granted, but no bond was given, and the transcript was not filed and errors assigned in the Appellate Court until the 21st day of June, 1905.

It is insisted by counsel for appellee that an appeal from an order fixing the point of crossing is an appeal from an interlocutory order, and that, as an appeal was not perfected by appellant as required by the statute governing appeals from such orders, a dismissal should follow. The condemnation proceeding in question was had under section 1 of the act of March 3, 1903 (Acts 1903, p. 125, c. 59; section 5464a, Burns' Ann. St. Supp. 1905). This act, as directly appears from its provisions, is supplementary to the act of March 11, 1901 (Acts 1901, p. 461, c. 207; section 5468a et seq., Burns' Ann. St. 1901). The evident design of section 1

of the act of 1903 was to make more particular provision concerning interurban, suburban, and street railroads seeking to cross steam railroads at grade than had existed under section 5 of the act of 1901, which related to the subject of condemnation by interurban and other railroads of like character of lands and rights and interests therein as against proprietors generally. In the main, the framework of the procedure as it now exists is found in the section last mentioned, and there is no doubt that said sections are to be considered as if they were one enactment. The provision concerning the right of appeal from the award is given by the act of 1901 in substantially the same language as is found in the steam railroad condemnation statute (section 5160, Burns' Ann. St. 1901), and this, under well-settled rules of construction, gives the right to set up in the exceptions matters of both law and fact going to the regularity of the appropriation; the effect of the appeal being to lodge the proceeding in the trial court, where it is governed, at least for the most part, by the ordinary rules of procedure in civil actions. McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413; Swinney v. Fort Wayne, etc., R. Co., 59 Ind. 205; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440; Midland R. Co. v. Smith, 125 Ind. 509, 25 N. E. 153. Section 1 of the act of 1903 gives to the company whose right of way is sought to be crossed the right to file objections to the point of crossing, within five days after the delivery of the instrument of appropriation, and to have a hearing thereon, and from a decision of the court or judge adverse to its objections it may appeal "in the same manner and under the same conditions and restrictions as provided by law in civil cases." Such an appeal is different from that which is taken by exceptions to the award, and was evidently intended to bring into review before a court of error the law questions arising under the objections to the location. It is very plain that the act contemplates that the effect of such appeal shall not be to suspend the proceeding, and, as the order is an intermediate one, we take it that it was the legislative Intent that an appeal therefrom should be governed by the provisions of the Code concerning appeals from interlocutory orders, unless it can be said that the order is in legal effect a final judgment.

The general rule is that a judgment, to be final, must dispose of the case as to all of the parties, and finally dispose of the subject-matter of the litigation. Champ V. Kendrick, 130 Ind. 545, 30 N. E. 635; Home, etc., V. Globe, etc., 145 Ind. 174, 44 N. E. 191; Keller V. Jordan, 147 Ind. 113, 46 N. E. 343; 2 Ency, of Pl. & Pr. 72. Mr. Black says: “An interlocutory judgment is one which determines some preliminary or subordinate point or plea or settles some step. question or default, arising in the progress

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