Opinion of the court by
Mr. Justice Woods.
This was an action by the appellee against the appellant to recover damages for an alleged injury to the plaintiff, received in driving over a bridge across a certain ditch in the city, which, it was alleged, the city had negligently suffered to be and remain out of repair.
The complaint, having stated the plaintiff’s profession to be that of a physician and surgeon, and the injury, alleges “ that before and at that time his professional services as a physician and surgeon were of the value of $500 per month, and he was realizing and earning that sum therefrom; and by reason of the injury to his body and his great pain aforesaid he was wholly incapacitated and rendered unfit and unable to practice his profession, and compelled to remain within doors, and lost for that time his aforesaid practice and the emoluments thereof, for a period of eight months, to his damage of $4,000,” etc.
Issue, trial, verdict and judgment for the plaintiff for the sum of $1,133.
The questions discussed by counsel for the appellant arise on the motion, made and overruled, for a new trial; and they will be considered in the order presented by counsel.
The court gave the following instruction upon the subject of notice to the city of the defective condition of the bridge, viz.:
“ Notice to the councilmen or street commissioner is notice to the city.” It is insisted that this instruction is wrong in so much as it declares that notice to the councilmen is notice to the city. The argument is that councilmen regarded as individuals, and not as a collective body, or as a committee of the collective body, have no powers over and are charged with no duties in respect to the streets of the city, and, therefore, that notice to them of a defect in a street does not affect the city. The argument appears not to be destitute of foundation, and, if the premise be conceded, the con-[784]*784elusion must probably follow. It may be observed, however, that the argument proceeds upon a phraseology somewhat different from that of the instruction. The latter says “ notice to the councilmen,” which, naturally, if not necessarily, means all of them ; not some or any of them as is assumed in the argument. It is not an apt mode of expression to say “ the eouncilmen,” if reference is intended to the members of the council in their individual capacities and relations, and, embracing as it naturally does, all the members, the phrase is not in apt form when a reference to the collective body is intended. Their coming or being altogether, except in connection with their official duties, would be an unusual and improbable occurrence, and a reference to them as “ the councilmen ” in the instruction may well be said to have meant the official body of eouncilmen. Properly understood, therefore, the instruction was not erroneous upon the theory of law advanced by the counsel, and if he was apprehensive of a mistaken understanding of it, he should have moved for such explicit qualification or further instruction as was deemed necessary.
But suppose the instruction be interpreted as meaning the councilmen as such, but not as assembled in council. Are they or are they not charged with any duty in reference to the streets of the city ? Among the powers expressly conferred on the common council as a body is to “ Have exclusive power over the streets, highways, alleys and bridges within such city, * * * and to make repairs thereof.” Sec. 61, act-of March 14, 1867; 1 Davis’ Rev. 1876, p. 300. This power as well as many others conferred in the same act, greatly concerns and affects the public welfare as well as private rights; and to the end that public and private interests may not suffer from a failure to exercise, or from negligence in the exercise of such powers, the law gives an injured party a remedy iu damages against the city itself. To the same end it is provided in the law that “ the common council shall hold stated meetings at least twice in each month, and the mayor or any five eouncilmen may call special meetings.” Sec. 47, act March 14,1867. The provision for calling special meetings of the council was doubtless enacted in consideration of the fact, demonstrated by experience, that emergencies will arise, or may be reasonably expected to occur, requiring the early or immediate action of the council, and when to [785]*785await the time for a regular meeting might entail disaster and loss, or at least the hazard of loss and liability on the city.
The power to call the council together in special meetings may as well, and perhaps more frequently, be exercised in reference to the condition of the streets and bridges within the city as any other subject of contract by the council. The power to call such meetings, by necessary implication imposes the duty to make the call in proper cases. It is true that five councilmen are required to concur in the call, but the duty rests on each who has notice of the emergency, for it is manifest that the refusal of any of five who knows of the necessity of a meeting, to join the other four in a call therefor, could not excuse the city from liability arising out of the failure to call such meeting. The duty growing out of the power to call special meetings in proper cases being therefore an individual duty imposed on each member of the council, it is incumbent on each when informed of an emergency which requires the action of the common council, to notify the mayor, or other councilmen who may join in the necessary call, and if he negligently fails to perform this duty, the city is liable to any one who may suffer injury thereby. We conclude, therefore, that notice to a councilman of a city of the dangerous condition of a street or bridge within the city' limits, is notice to the city.
Our conclusion is fortified by a reference to the provisions of the law concerning the duties and powers of the street commissioner, as found in section 28 of the act of May 14, 1867, already referred to, namely : “ Sec. 28. It shall be,the duty of the street commissioner, under the direction of the common council, to superintend the streets, alleys, market places, landings; the construction, repairing, cleaning and lighting the same; the building of sewers and drains, the purchase of the necessary implements of labor, and the employment of laborers, and to perform all the other duties incident to his office: Provided, He shall have no power to contract for any debt or liability against the city, unless specially authorized so to do by an order, resolution or ordinance of the common council, made in accordance with the powers vested in such council by this act.”
But if the powers of the street commissioner were more ample, and free from restriction, it would still be true, under the other pro[786]*786visions of the law to which we have adverted, that the councilmen have power and a consequent duty in reference to the streets of the city, and, this conceded, nothing is wanting to support the conclusion already announced. The wisdom of the rule which makes notice to councilmen notice to the city, is shown by consideration of the fact that councilmen are elected from the different wards of the city, and each is likely to observe, or at least soon to learn of, the dangerous condition of any of the streets or bridges in his ward ór neighborhood, and by prompt action to secure the necessary repairs or protection against danger.
In the dissenting opinion it is affirmed to be the universal rule “
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Opinion of the court by
Mr. Justice Woods.
This was an action by the appellee against the appellant to recover damages for an alleged injury to the plaintiff, received in driving over a bridge across a certain ditch in the city, which, it was alleged, the city had negligently suffered to be and remain out of repair.
The complaint, having stated the plaintiff’s profession to be that of a physician and surgeon, and the injury, alleges “ that before and at that time his professional services as a physician and surgeon were of the value of $500 per month, and he was realizing and earning that sum therefrom; and by reason of the injury to his body and his great pain aforesaid he was wholly incapacitated and rendered unfit and unable to practice his profession, and compelled to remain within doors, and lost for that time his aforesaid practice and the emoluments thereof, for a period of eight months, to his damage of $4,000,” etc.
Issue, trial, verdict and judgment for the plaintiff for the sum of $1,133.
The questions discussed by counsel for the appellant arise on the motion, made and overruled, for a new trial; and they will be considered in the order presented by counsel.
The court gave the following instruction upon the subject of notice to the city of the defective condition of the bridge, viz.:
“ Notice to the councilmen or street commissioner is notice to the city.” It is insisted that this instruction is wrong in so much as it declares that notice to the councilmen is notice to the city. The argument is that councilmen regarded as individuals, and not as a collective body, or as a committee of the collective body, have no powers over and are charged with no duties in respect to the streets of the city, and, therefore, that notice to them of a defect in a street does not affect the city. The argument appears not to be destitute of foundation, and, if the premise be conceded, the con-[784]*784elusion must probably follow. It may be observed, however, that the argument proceeds upon a phraseology somewhat different from that of the instruction. The latter says “ notice to the councilmen,” which, naturally, if not necessarily, means all of them ; not some or any of them as is assumed in the argument. It is not an apt mode of expression to say “ the eouncilmen,” if reference is intended to the members of the council in their individual capacities and relations, and, embracing as it naturally does, all the members, the phrase is not in apt form when a reference to the collective body is intended. Their coming or being altogether, except in connection with their official duties, would be an unusual and improbable occurrence, and a reference to them as “ the councilmen ” in the instruction may well be said to have meant the official body of eouncilmen. Properly understood, therefore, the instruction was not erroneous upon the theory of law advanced by the counsel, and if he was apprehensive of a mistaken understanding of it, he should have moved for such explicit qualification or further instruction as was deemed necessary.
But suppose the instruction be interpreted as meaning the councilmen as such, but not as assembled in council. Are they or are they not charged with any duty in reference to the streets of the city ? Among the powers expressly conferred on the common council as a body is to “ Have exclusive power over the streets, highways, alleys and bridges within such city, * * * and to make repairs thereof.” Sec. 61, act-of March 14, 1867; 1 Davis’ Rev. 1876, p. 300. This power as well as many others conferred in the same act, greatly concerns and affects the public welfare as well as private rights; and to the end that public and private interests may not suffer from a failure to exercise, or from negligence in the exercise of such powers, the law gives an injured party a remedy iu damages against the city itself. To the same end it is provided in the law that “ the common council shall hold stated meetings at least twice in each month, and the mayor or any five eouncilmen may call special meetings.” Sec. 47, act March 14,1867. The provision for calling special meetings of the council was doubtless enacted in consideration of the fact, demonstrated by experience, that emergencies will arise, or may be reasonably expected to occur, requiring the early or immediate action of the council, and when to [785]*785await the time for a regular meeting might entail disaster and loss, or at least the hazard of loss and liability on the city.
The power to call the council together in special meetings may as well, and perhaps more frequently, be exercised in reference to the condition of the streets and bridges within the city as any other subject of contract by the council. The power to call such meetings, by necessary implication imposes the duty to make the call in proper cases. It is true that five councilmen are required to concur in the call, but the duty rests on each who has notice of the emergency, for it is manifest that the refusal of any of five who knows of the necessity of a meeting, to join the other four in a call therefor, could not excuse the city from liability arising out of the failure to call such meeting. The duty growing out of the power to call special meetings in proper cases being therefore an individual duty imposed on each member of the council, it is incumbent on each when informed of an emergency which requires the action of the common council, to notify the mayor, or other councilmen who may join in the necessary call, and if he negligently fails to perform this duty, the city is liable to any one who may suffer injury thereby. We conclude, therefore, that notice to a councilman of a city of the dangerous condition of a street or bridge within the city' limits, is notice to the city.
Our conclusion is fortified by a reference to the provisions of the law concerning the duties and powers of the street commissioner, as found in section 28 of the act of May 14, 1867, already referred to, namely : “ Sec. 28. It shall be,the duty of the street commissioner, under the direction of the common council, to superintend the streets, alleys, market places, landings; the construction, repairing, cleaning and lighting the same; the building of sewers and drains, the purchase of the necessary implements of labor, and the employment of laborers, and to perform all the other duties incident to his office: Provided, He shall have no power to contract for any debt or liability against the city, unless specially authorized so to do by an order, resolution or ordinance of the common council, made in accordance with the powers vested in such council by this act.”
But if the powers of the street commissioner were more ample, and free from restriction, it would still be true, under the other pro[786]*786visions of the law to which we have adverted, that the councilmen have power and a consequent duty in reference to the streets of the city, and, this conceded, nothing is wanting to support the conclusion already announced. The wisdom of the rule which makes notice to councilmen notice to the city, is shown by consideration of the fact that councilmen are elected from the different wards of the city, and each is likely to observe, or at least soon to learn of, the dangerous condition of any of the streets or bridges in his ward ór neighborhood, and by prompt action to secure the necessary repairs or protection against danger.
In the dissenting opinion it is affirmed to be the universal rule “ that the governing officers of a corporation such as directors and trustees, must, in order to bind the corporation, act as a collective body and in regular and lawful session,” and that this rule applies with peculiar force to the officers of municipal corporations “ discharging duties for the benefit of the public, and not for the promotion of private interests. ”
This principle is doubtless true and applicable to all subjects concerning which the council must act if at all as a body, but it does not seem to us to apply to the subject of notice. Notice to the street commissioner, or to the mayor, is not notice to the council itself, but is notice to the city, on which the council must act, in order to save the city from liability; and the application of the rule contended for, would relieve the council from the responsibility of acting on such notice as well as upon notice to an individual member of the council. The street commissioner and mayor themselves can do nothing to repair a street or broken bridge if it requires the incurring of any debt or liability against the city, and yet notice to them is sufficient. The mayor can discharge his duty, by calling the council together for the purpose of enabling it to-take steps to have the street made good. But suppose the councilmen ignore the call of the mayor and neglect to assemble in lawful session ? the repairs are not made, and some one is injured; the city is held liable, but why ? Not on account of any fault of the mayor or street commissioner; they have each done their whole duty, under the powers conferred on them ; not on account of any negligence of the common council, because that has not been in session and could not act. But unless there has been fault somewhere, and in some[787]*787body who represented the city, there can be no liability at all. It is clear that the only fault is in the individual couneilmen in failing to assemble, and for that fault the city is made responsible.
If the doctrine is enforced that the city is not liable for the conduct of couneilmen, but only on account of the action of the council in lawful session, then notice to all the couneilmen, though assembled together in the council hall, would not be good if given just before commencement or just after the close of the session. Such a proposition does not command the assent of conscience and reason, and can hardly be accepted as the rule of law. For the purpose of receiving notice, the couneilmen of a city, under our statute, are at all times the agents of the city, and within a reasonable time after receipt of notice must move in the discharge of the duty so imposed upon them. It may be said that the presumption is that the council has furnished and put at the disposal of the ministerial officers the funds necessary to meet the expenses of emergencies, but presumptions of such a nature are by no means always true, and the rules of law must be applicable in all cases, and wherein the presumptions fail as well as when they hold good. It may be enough to guard against danger, without making repairs, and the ministerial officers in most cases may be bound and able to provide the necessary safeguards, but cases are supposable when they cannot do so. The mayor and street commissioner may be absent from the city, or sick, or dead, or they may have resigned, and, in such cases, unless notice to the couneilmen be good, there can be no notice at all. In such cases, the public interests imperatively require that the couneilmen shall represent the city, and it being conceded that notice to the couneilmen must be good in some cases, there can be no good reason for not holding it good in all cases.
Objection is made to the second instruction given upon the request of the plaintiffj because it assumes the existence of a controverted fact, namely, that the bridge in question was within the city. The language of the instruction excepted to, is as follows: “ If the bridge in question, being within the city was defective,” etc. We do not regard the instruction as assuming the fact stated. The sentence is hypothetical, not only in subject and predicate, but in its subordinate or qualifying clauses as well. See Morgan v. [788]*788Wattles, 69 Ind. 260. If this were doubtful, it is clear upon all the instructions given, the jury was not misled in this respect. Further objection is made to this instruction, because of the clause saying that if “ this (the condition of the bridge) had continued for several days or weeks, then the city will be presumed to have had notice, such as will bind her in that regard.”
In answer to an interrogatory, .the jury found the fact to be that the bridge had been in the condition it was in at the time the plaintiff was injured, for about two weeks, and in answer to another interrogatory, it was found that there had been negligence on the part of the city or of her street commissioner, at and before the accident, to keep the bridge in repair whenever discovered to be out of repair. Under any ordinary circumstances, and the evidence discloses nothing extraordinary, the fact of a bridge having been out of repair and in a dangerous condition, would warrant an inference of knowledge on the part of the officers of the city or some of them having duties in reference thereto, of the fact. See Todd v. The City of Troy, 61 N. Y. If therefore not strictly correct, it is manifest that the instruction did the appellant no harm, and under sections 101 and 580 of the Code, we are forbidden to reverse a case when it appears that the merits of the cause have been fairly tried in the court below. These considerations dispose too of the objection made to the first instruction in reference to the time of the notice to the city. The rule no doubt is as claimed that “ the city is responsible only for reasonable diligence to repair the defect or prevent accidents, after the unsafe condition of the street is known.” Dillon on Mun. Corp. sec 416. But from the answers to the interrogatories, as well upon the evidence, it is clear that the city had notice in due time to have made repair of the bridge in question. ,
It is also claimed that the court erred in permitting the plaintiff to make proof concerning his professional earnings before his injury. Summing up on this topic, the counsel for the appellant says:
“ In substance, the plaintiff is permitted to proye what his professional earnings had been per year for five years, and how much his business had fallen off' during six months succeeding the injury. This was permitted to go to the jury under an allegation in the complaint that the plaintiff was damaged in his business, and asking a recovery for the same The damages are for a personal injury. [789]*789The evidence was admissible in estimating the value of time lost, but not as a basis of damages. Taken in connection with the demand of the complaint, and the instruction of the court, the evidence was clearly admitted as a basis of damages. It has been held that similar evidence is competent, not as a basis of damages, but as a guide to the jury, to aid them in the exercise of their discretion.”
M. Winfield, for appellant.
D. C. Justice, for appellee.
“ The following are the authorities in support of this proposition : 6 King, (N. C.) p. 42; 11 Mich. p. 543; 43 N. H. p. 493; 5 R. I. p 299 ; 20 How. p 34; 23 Wend. p. 425; 33 N. J. (4 Vro.) p. 434; 11 Allen, p. 73.”
In addition to these cases cited by counsel, see in point: The City of Indianapolis v. Gaston, 58 Ind. 224 ; The City of Elkhart v. Ritter, 66 Ind. 136.
We have no doubt the testimony was admissible, and, indeed, the proposition of counsel for the appellant concedes as much. It did not furnish the measure of the damages to which the plaintiff was entitled, but the jury had a right to consider it in estimating the compensation to be awarded ; and it is evident from the amount of the verdict that this is the use they made of it. It is enough, however, to meet the exception to its introduction, that the evidence was admissible for any purpose. If the court gave any instruction authorizing a misuse of the evidence, exception should have been saved to the instruction. It has not been pointed out wherein the instructions were wrong in this direction.
We find no available error in the record.
Judgment affirmed, with costs.