1 § 7551. Corporate Existence of Defendant.-Since courts ordinarily take judicial notice of the existence of municipal corporations, this fact may be averred in general terms. Thus, in an action. against a city for injuries from a defective street, it was held that an allegation of the existence of the street since the date of "the organization of the city," which was prior to the injury, sufficiently set forth the corporate existence of defendant. A complaint describing the defendant as "The village of North Muskegon, a municipal corporation of the State of Michigan," has been held a sufficient allegation of its existence and character as a village corporation.3 § 7552. Pleading Consolidation of Cities.-Where the charters of two cities were consolidated, the proper course, in pleading a cause of action which arose against one of them prior to the consolidation, was held to be to show the facts constituting the liability of the old corporation; and from these the liability of the present city was held to be inferable as a matter of law.* § 7553. Averment that Work was Done in Execution of a Corporate Power. The fact that work was done in the execution of a corporate power, under a rule making the municipality liable for negligence only in such cases, has been held sufficiently shown in a complaint against a city for wrongfully overflowing plaintiff's premises which alleged in substance that defendant excavated a hole or basin in a public alley and caused the water falling and flowing upon the alley to be drained therein without providing any outlet therefrom. So, in an action against a city for personal injuries caused by a shock from an electric light wire, it was held not necessary to allege that the city was authorized to operate the electric light plant, it being alleged that the city was chartered under the general laws, conferring such authority on cities." § 7554. Averment that Negligent Act was Permitted by City.In an action against a city for damages caused by the filling of a ditch, which was alleged to have been done by a water company, it was held that the petition should have alleged that the action complained of Rock Island v. Cuinely, 126 Ill. 408; s. c. 18 N. E. Rep. 753; aff'g s. c. 26 Ill. App. 173. 'Eskridge v. Lewis, 51 Kan. 376; s. c. 32 Pac. Rep. 1104. 'Clark v. North Muskegon, 88 Mich. 308; s. c. 50 N. W. Rep. 254. 'Adams v. Minneapolis, 20 Minn. 484. 'See Vol. V, § 5782, et seq. New Albany v. Ray, 3 Ind. App. 321; s. c. 29 N. E. Rep. 611. 'Honey Grove v. Lamaster (Tex. Civ. App.), 50 S. W. Rep. 1053 (no off, rep.). was done by the permission of the defendant, and that it was under legal obligation to keep the ditch open.s § 7555. Averment that the Highway or Bridge was One which the Defendant was Bound to Keep in Repair.-An averment that the street, sidewalk, or bridge was one that the municipality was bound to keep in repair is necessary in some form, direct or inferential," especially in those jurisdictions where the duty of repairing certain bridges or highways is cast upon one municipal body and the duty of repairing others is cast on some other municipal or private corporation or on some public officer. Thus, where the complaint alleged that the defendant county "built and constructed, and caused to be built and constructed, across a stream of water known as Blue River, in said County, and near the northern terminus of Harrison Street, in the city of Shelbyville, and on or near what is commonly known or called the Michigan State Road, a certain bridge across said street," etc., it was held that the pleading was bad on demurrer in that it failed to show that the bridge was one which the county had authority to build; because it affirmatively showed that the bridge was within the corporate limits of the city of Shelbyville.10 But it has been held that the complaint in an action for damages against the county grounded on a defective county bridge, sufficiently avers the liability of the county to keep the bridge in repair, where it alleges that the bridge was constructed over a natural water-course consisting of a running stream, known as a certain named river, on the line of a public highway within the county.11 The dimensions of the bridge upon a public highway should be stated where liability of the county to keep such a structure in repair is made by the statute to depend upon that fact. In such a case, it has been held that a complaint against a county board for an injury resulting from the defective condition of a bridge, designated as a certain culvert bridge upon the public highway, without stating its dimensions or the manner of its construction, was insufficient in failing to show that the bridge was one which the board was bound to keep in repair under the statute, and that the defect was not helped by an averment that the board in its corporate capacity had supervision over and control of the structure.12 'Ross v. Clinton, 46 Iowa 606. Clark v. North Muskegon, 88 Mich. 308; s. c. 50 N. W. Rep. 254. 10 Shelby County v. Deprez, 87 Ind. 509. For another petition held defective by reason of not showing that the bridge was one which the county was bound to maintain, see Reinhart v. Martin County, 9 Ind. "Shelby County v. Castetter, 7 Ind. App. 309; s. c. 33 N. E. Rep. 986; 34 N. E. Rep. 687. 12 Clark County v. Brod, 3 Ind. App. 585; s. c. 29 N. E. Rep. 430. § 7556. Further of Averments as to Duty to Keep Highways in Repair. An allegation in a petition in an action to recover damages for personal injuries that a certain street constituted a public highway of the city at the time of the injury sufficiently establishes its character as such, and it is not necessary to allege that the street has been formally laid out in pursuance of ordinances.13 So, a complaint sufficiently showed that a sidewalk was one which it was the duty of the city to repair, where it alleged that the city had exclusive authority and jurisdiction over its streets and sidewalks on one side of a named street, in front of a building the number of which was given, and that such sidewalk was allowed to get out of repair.1 So, where the action is for an injury received from a defective sidewalk, it is not necessary to allege that the city authorized the construction of the sidewalk, or that it had adopted it, or that it owned it. But an allegation that the street on which the sidewalk was situated was a public thoroughfare of the city; that the city had exclusive control of the same; that it was its duty to keep the same in repair; that it was necessary for the convenience and safety of the public that it should be kept in repair; that the city authorities negligently permitted the sidewalk to remain in an unsafe and dangerous condition,-is good, especially after verdict.15 § 7557. Averring Notice of the Defect which Caused the Injury. -The complaint should either allege in direct terms that the city had notice of the defect which caused the injury in time, by the exercise of reasonable diligence, to have repaired the same, or else it should state facts from which this conclusion may be fairly implied.16 It 13 Golden v. Clinton, 54 Mo. App. of time," or "an agreed length of 100. 14 Columbus v. Strassner, 124 Ind. 482; s. c. 25 N. E. Rep. 65. 1 Haire v. Kansas, 76 Mo. 438. But see Waggener v. Point Pleasant, 42 W. Va. 798; s. c. 26 S. E. Rep. 352. 16 Orlando v. Heard, 29 Fla. 581; s. c. 11 South. Rep. 182; Daytona v. Edson (Fla.), 34 South. Rep. 954; Chicago v. Gillett, 91 Ill. App. 287; Nappanee v. Ruckman, 7 Ind. App. 361; s. c. 34 N. E. Rep. 609; Rusher v. Aurora, 71 Mo. App. 418; Heilner v. Union County, 7 Or. 83. Constructive notice to a town of the existence of a defect in a bridge is not sufficiently averred in the allegations in a complaint that the town negligently suffered the bridge to be out of repair "for a long space time," and that it was dangerous is not necessary that the pleader should allege that the defendant had time to make the repairs after he discovered or might by the exercise of ordinary care have discovered the defect; since the defendant must plead and prove as a matter of defense, that he did not have time to repair the street before the injury was received.17 Where the petition stated that the walk in question was negligently constructed, and that the city, well knowing the premises, had negligently permitted it to remain in a defective condition until after the injury occurred, it was held that it averred facts which showed that the city was chargeable with notice of the condition of the walk from the time of its construction until after the injury occurred.18 So, an averment that the city wrongfully and negligently suffered a walk to be and remain in bad and unsafe repair at the time of the accident has been upheld as a sufficient allegation of reasonable time and opportunity after knowledge of the defect to put the walk in proper condition and failure to use reasonable diligence therein, at least under the plea of the general issue.19 If the defect which is alleged to have produced the injury is a defect in construction, then it is not necessary to aver that the municipality had notice of it.20 One court has stated the rule to be that "where a municipal corporation is charged with negligence in permitting a highway or bridge to be dangerous, and the danger is created by the wrongful act of another, the complaint must allege that the corporation had notice of such dangerous condition, or else must state facts from which such notice may be fairly inferred.21 But where the dangerous condition of a bridge or highway is not created by the wrongful act of another, but arises from the act of the corporation itself, or from decay or rottenness of the structure, it is sufficient in the complaint to charge generally the negligence of mit evidence as to the condition of the sidewalk and the nature of repairs made on it: Joliet v. Johnson, 177 Ill. 178; s. c. 52 N. E. Rep. 498; aff'g s. c. 71 Ill. App. 423. 17 Covington v. Diehl, 22 Ky. L. Rep. 955; s. c. 59 S. W. Rep. 492; Moody v. Shelby Twp., 110 Mich. 396; s. c. 3 Det. L. N. 488; 68 N. W. Rep. 259. 18 Eskridge v. Lewis, 51 Kan. 376. A declaration in an action against a town for personal injuries due to a defective highway need not expressly aver the fact essential to the liability of the town, under R. I. Gen. Laws, chap. 36, § 15, that it had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence, where it alleges that the town negligently suffered the highway to be out of repair: Carroll v. Allen, 20 R. I. 144; s. c. 3 Am. Neg. Rep. 100; 37 Atl. Rep. 704. 19 Storrs v. Grand Rapids, 110 Mich. 483; s. c. 3 Det. L. N. 474; 68 N. W. Rep. 258. 20 See Vol. V, § 5993; Wabash Co. v. Pearson, 120 Ind. 426; s. c. 22 N. E. Rep. 134; Elwood v. Laughlin, 29 Ind. App. 667; s. c. 65 N. E. Rep. 18; Padelford v. Eagle Grove, 117 Iowa 616; s. c. 91 N. W. Rep. 899. 21 Citing Lafayette v. Blood, 40 Ind. 62; Higert v. Greencastle, 43 Ind. 574; Fort Wayne v. DeWitt, 47 Ind. 391; Elkhart v. Ritter, 66 Ind. 136. the defendant in the act or omission complained of, and no averment as to notice is necessary."22 An examination of the cases will show that this doctrine is unsound, and that it is only in cases where the city is charged with negligence in creating the nuisance that the question of notice is immaterial and hence not necessary to be averred. Where the complaint contains general allegations of negligence on the part of the city in suffering a street to become and remain out of repair, and alleges that the city had notice that it was out of repair, it will be treated, after verdict, as an inferential allegation that the city had notice of the defect in time to have repaired it so as to have avoided the injury.23 An averment that the condition of the street had existed for considerable time and that it was well known to the city sufficiently alleges constructive notice;24 and so does an allegation that a sidewalk at a certain place was rotten, of which the superintendent had notice, and that it contained many holes, and that plaintiff was injured by stepping into a hole.25 Evidence of constructive notice is admissible under an allegation that the defendant had notice that the sidewalk was decayed and unsafe, and had broken down.2 26 § 7558. Stating the Place of the Injury.-The fact that the injury occurred on a legal highway is sufficiently covered by the allegation that it was a public highway, and it is not necessary to set out that it was a highway in public use for more than twenty years or that it was laid out agreeably to statute.27 The complaint for injuries from a defective sidewalk should allege that the street in which the accident occurred was open to public travel,28 and state the place of the accident causing the injury with such certainty that it can be located without difficulty. Within this rule an allegation of injury on the Allen Co. v. Bacon, 96 Ind. 31, 32; citing South Bend v. Paxton, 67 Ind. 228; Indianapolis v. Scott, 72 Ind. 196; Madison v. Brown, 89 Ind. 48. 23 Madison v. Baker, 103 Ind. 41. See also, Lafayette v. Ashby, 8 Ind. App. 214, 218; Michigan City v. Ballance, 123 Ind. 334; Logansport v. Justice, 74 Ind. 378; Indianapolis v. Murphy, 91 Ind. 382. 24 Lord v. Mobile, 113 Ala. 360; s. c. 21 South. Rep. 366; Mattoon v. Worland, 97 Ill. App. 13; Anderson v. Fleming, 160 Ind. 597; s. c. 67 N. E. Rep. 443; Archer v. Johnson City (Tenn.), 64 S. W. Rep. 474; Randall v. Hoquiam, 30 Wash. 435; s. c. 70 Pac. Rep. 1111. 25 Durham v. Spokane, 27 Wash. 615; s. c. 68 Pac. Rep. 383. 26 Indianapolis v. Tansell, 157 Ind. 463; s. c. 62 N. E. Rep. 35. 27 "Hurley v. Manchester, 39 N. H. 291. Evidence in an action for personal injuries, that the place where the accident occurred was a public highway, is admissible under an allegation of the complaint that such place was a public highway which had become such by long continued usage: Lutcher &c. Lumber Co. v. Dyson (Tex. Civ. App.), 30 S. W. Rep. 61 (no off. rep.). 28 Clark v. North Muskegon, 88 Mich. 308; s. c. 50 N. W. Rep. 254. |