Allied Coal & Material Co. v. Moore

• Decision Date: 28 October 1927
• Docket Number: No. 12841.,12841.
• Parties: ALLIED COAL & MATERIAL CO. v. MOORE.
• Court: Indiana Appellate Court

88 Ind.App. 253

157 N.E. 55

ALLIED COAL & MATERIAL CO.

v.MOORE.

No. 12841.

Appellate Court of Indiana, in Banc.

June 10, 1927.

As Modified Oct. 28, 1927.

Appeal from Boone Circuit Court; Frank E. Hutchinson, Judge.

Action by Marquis L. Moore against the Allied Coal & Material Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bingham, Mindenhall & Bingham, of Indianapolis, for appellant.

J. Burdette Little, of Indianapolis, and Rogers & Smith, of Lebanon, for appellee.

NICHOLS, J.

[1] Action to recover damages for alleged personal injuries sustained by appellee when he fell into a sidewalk coal hole, alleged to have been negligently open and left unguarded by appellant. The issues tried were those tendered by the first and third paragraphs of amended complaint and the answer thereto in general denial. There was a verdict in favor of appellee for $3,500, upon which the court rendered judgment, from which this appeal; appellant assigning as error the court's action in overruling appellant's motion for a new trial, in overruling appellant's motion to make the first paragraph of amended complaint more specific, and in overruling appellant's demurrer to the third paragraph of amended complaint. It is averred in the first paragraph of amended complaint that on or about December 3, 1924, appellant was delivering fuel to the basement of the City Trust Company Building in Indianapolis, about 5:15 p. m. when it was raining, and by and through its employees, in the necessary performance of their duties, it recklessly and negligently opened, and permitted to remain open for a long period of time, a hole into a cellar and basement adjacent to said building, which was made for the purpose of delivering fuel to said building, and recklessly and negligently failed to give any warning thereof to the public and persons using said sidewalk, and to appellee; that it was dark and raining, and that said opening, used in said manner, was dangerous and a menace to the life and limb of persons using said sidewalk and to appellee; that appellee was walking south on said sidewalk at said time, and, because of the number of persons passing thereon at said time, in the darkness and falling rain, was unable to see and did not see the condition of said opening; that appellant, through its said agents and employees, knew, or by the exercise of due diligence should have known, that it was dangerous to persons using said sidewalk, as aforesaid. As appellee was so using it, under such conditions and without warning and knowledge to such persons that said hole was open and the lids raised, and without his fault, he stepped and fell into said opening, and was greatly and permanently injured, and still suffers great pain and anguish of body and mind, and will so suffer for the remainder of his life, was rendered wholly and permanently disabled from performing his usual occupation, or any avocation, and that by reason of the premises he has been damaged in the sum of $25,000.

There was no error in overruling appellant's motion to make this...