City of Muncie v. Hey

• Citation: 74 N.E. 250,164 Ind. 570
• Decision Date: 09 May 1905
• Docket Number: 20,520
• Parties: City of Muncie v. Hey
• Court: Indiana Supreme Court

74 N.E. 250

164 Ind. 570

City of Muncie v. Hey

No. 20,520

Supreme Court of Indiana

May 9, 1905

From Delaware Circuit Court, Joseph G. Leffler, Judge.

Action by Lizzie Hey against the City of Muncie. From a judgment on a verdict for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.

Affirmed.

Frank Ellis and White & Young, for appellant.

George H. Koons, for appellee.

OPINION

Montgomery, J.

This action was brought by appellee for a personal injury resulting from a fall caused by the alleged negligence of appellant in suffering ice to accumulate and remain upon one of its sidewalks, the ice being formed from water collected upon the roof of an adjoining building and cast upon the walk by an overhanging and projecting conductor. Appellant demurred unsuccessfully to the complaint for want of facts and then answered by general denial. The cause was tried by a jury, and resulted in a general verdict for appellee, with which answers were returned to special interrogatories. Appellant's motion for judgment on the answers of the jury to interrogatories and motion for a new trial were both overruled, and judgment for $ 475 rendered upon the verdict.

The assignment of errors calls in question the rulings of the court upon the demurrer to the complaint, the motion for judgment upon the special findings of the jury, and the motion for a new trial.

The length of the complaint forbids its reproduction in this opinion, but, in addition to all the usual and essential formal parts, it charges, in substance, that for more than four months prior to the 10th day of February, 1902, appellant negligently permitted water collected upon the roof of an adjoining building to be carried by an overhanging and projecting conductor and poured upon a much-used sidewalk of one of the principal streets of the city, in such a way as to form a pool next to the building, which in freezing and thawing weather formed a sheet of ice six feet wide, extending across the sidewalk in an oval shape, five inches thick in the center and tapering to thin edges, thus making a dangerous obstruction to the use of the walk at that point; that such a body of ice had formed and remained upon said walk for five days prior to said date, of which appellant had both actual and constructive notice; that appellee was ignorant of such conditions, and was passing along said sidewalk in the daytime, and in the exercise of due care, when she slipped upon said ice, which was at the time hidden by a slight covering of snow, and fell and was injured.

Appellant insists that the complaint is insufficient, for the reason that it seeks to hold appellant liable for its failure to exercise a legislative power in the regulation of water conductors. We do not concur in this view of the pleading. Cities in this State have exclusive control over their streets and sidewalks, and are accordingly required to exercise reasonable care and diligence to keep them in safe condition for use by persons who exercise ordinary care. This is a continuing duty, and for any negligent omission or failure in its performance an action will lie for the resultant damages.

In this case the water was collected, confined in an artificial channel, and by means of a projecting conductor cast in a body upon the sidewalk, at a place where there was a depression which retained the water, so as to form a pool with gradually expanding boundaries. These facts clearly distinguish this case from those in which it is sought to hold cities liable for a failure to remove from their pavements snow, sleet and ice accumulated in a natural way. McQueen v. City of Elkhart (1896), 14 Ind.App. 671, 43 N.E. 460. The accumulation of water and ice in the manner shown in this case, so as to obstruct the free and safe use of the sidewalk, constituted a nuisance which it was the duty of the city to prevent or abate, and if it negligently failed to perform this duty, as charged, it ought to be and will be held liable for the natural consequences. The complaint stated a cause of action, and appellant's demurrer thereto was properly overruled. Hughes v. City of Lawrence (1894), 160 Mass. 474, 36 N.E. 485; Ayres v. Village of Hammondsport (1891), 130 N.Y. 665, 29 N.E. 265; McDonnell v. City of Philadelphia (1892), 12 Pa. Co. Ct. Rep. 672; Scoville v. Salt Lake City (1895), 11 Utah 60, 39 P. 481; City of Cincinnati v. Grebner (1904), 25 Ohio C. C. 700.

In support of the assignment that the court erred in overruling appellant's motion for judgment upon the special answers of the jury notwithstanding the general verdict, it is urged that the answer to the fortieth interrogatory is in irreconcilable conflict with the general verdict. This interrogatory and the answer to the same are as follows: "Was the sidewalk constructed in a reasonably safe condition to be traveled? A. Yes." The fact that the sidewalk was originally constructed in a reasonably safe condition for travel would not fulfil all the requirements of the law. The duty remained to exercise a continuing oversight to keep the walk in repair and free from obstructions. The answers to the next two interrogatories showed that one of the stones with which the walk was paved at that point had settled so that its northeast corner was one inch lower and its northwest corner was one-half inch lower than the adjoining stone. It was this condition of the pavement, in connection with the discharge of roof water, that caused the accumulation of ice of which appellee complained.

Answers to other interrogatories tending to show that appellee might have walked around the ice which caused her fall, or gone over the opposite sidewalk, or along the roadway, which was paved with asphaltum, are urged upon our consideration to overthrow the general verdict. This is not a case, however, where the doctrine of choice of ways was applicable. It is shown by the special findings of the jury that appellee had no previous knowledge of the defect in this walk, or of the conditions which caused the accumulation of the ice, or of the existence of the ice itself, until within a few feet of it; and that she proceeded with due care, and did not, with knowledge, voluntarily encounter the danger which produced her injury. It is a well-settled principle that a pedestrian is not ordinarily required to forego the use of a sidewalk because of a known defect, but may proceed under the requirement that he use care commensurate with the known danger. Taking all the answers of the jury together, it can not be said that they are in this respect in conflict with the general verdict.

It appears from the answer to the seventy-ninth interrogatory that no officer of the appellant city knew of the existence of the ice upon which appellee was injured in time to have removed the same before such injury occurred. By this answer the jury manifestly intended only to find the absence of actual knowledge on the part of the city, and did not mean to contradict the general verdict by which, in effect, they said that appellant ought to have known, and by implication of law did know, of the dangerous condition of the walk in time to have repaired the same and avoided the injury. In the case of the City of Ft. Wayne v. Patterson (1891), 3 Ind.App. 34, 38, 29 N.E. 167, the court, in considering a similar matter, said: "It sufficiently appears from the finding that the city had no actual notice of the defect; but, indulging, as we must, all presumptions in favor of the general verdict, it is not clearly incompatible with the special findings to suppose that there might have been evidence of the existence of the defect for such a length of time that, considering its character, the failure of the appellant to have knowledge of it would have been neglect of duty."

The jury found, in answer to interrogatory number seventy-eight that the ice on the sidewalk from which appellee received her injury was caused by the acts of appellant and its officers, and, by other answers, that this accumulation of ice had been on the walk for two or three days prior to the day of the accident. If, as specially found by the jury, the accumulation of ice complained of was caused by the acts of appellant's officers, then no notice was necessary. Board, etc., v. Bacon (1884), 96 Ind. 31; City of Ft. Wayne v. Coombs (1886), 107 Ind. 75, 57 Am. Rep. 82, 7 N.E. 743; Board, etc., v. Pearson (...