City of Aurora v. Bitner

• Decision Date: 25 February 1885
• Docket Number: 11,828
• Parties: The City of Aurora v. Bitner et al
• Court: Indiana Supreme Court

100 Ind. 396

The City of Aurora v. Bitner et al

No. 11,828

Supreme Court of Indiana

February 25, 1885

From the Dearborn Circuit Court.

C. S Jelley, for appellant.

O. F Roberts and D. H. Staff, for appellees.

OPINION

Colerick C.

This action was brought by the appellees against the appellant, to recover damages for injuries alleged to have been received by the appellee Mary Bitner, by falling while walking over a defective gutter crossing in the city of Aurora, Indiana. The complaint consisted of three paragraphs, to each of which a separate demurrer was overruled. An answer in two paragraphs was filed, to which the appellees replied. The action was tried by a jury, who returned a verdict in favor of the appellees and assessed their damages at $ 400, upon which verdict, over a motion for a new trial, judgment was rendered against the appellant, from which it has appealed to this court, and assigns as errors the rulings of the court upon said demurrers, and on the motion for a new trial.

It is unnecessary for us to examine the first and third paragraphs of the complaint for the purpose of determining their sufficiency, as the record shows that the verdict was based alone on the second paragraph of the complaint, and hence, even if error was committed by the court in overruling the demurrers to the first and third paragraphs, it was harmless and unavailable. See McComas v. Haas, 93 Ind. 276; State v. Julian, 93 Ind. 292; Bartlett v. Pittsburgh, etc., R. W. Co., 94 Ind. 281; Louisville, etc., R. W. Co. v. Davis, 94 Ind. 601; Hawley v. Smith, 45 Ind. 183; Blessing v. Blair, 45 Ind. 546; Blasingame v. Blasingame, 24 Ind. 86; Keegan v. v. Carpenter, 47 Ind. 597.

The appellant insists that the second paragraph of the complaint was insufficient in this, that it failed to show with sufficient certainty that the appellant was guilty of any negligence, either in the construction of the crossing or in maintaining it after its construction, and that the injury occurred without the fault or negligence of the injured person. We think the complaint, in these respects, was sufficient. It averred "that on the 26th day of November, 1881, and for more than five years previous thereto, the defendant kept and maintained within the corporate limits of said city a gutter crossing, crossing from Judiciary street in said city across the gutter running along the west side of said street to the sidewalk on the opposite side of said gutter; that said crossing consisted of boards placed lengthwise with said street, and at right angles with and on two cross pieces of timber parallel with each other and extending across said gutter; that said crossing was continuously used by the citizens of said city and by the public for the purpose of crossing over said gutter; that for more than -- days before the time of the injury hereinafter complained of, the defendant allowed the boards of said crossing to become loose and insecure, and that the defendant had notice that said crossing was in an insecure and dangerous condition for more than two days prior to the time of said injury, but that she wholly failed, neglected and refused to repair the same; that on the 26th day of November, 1881, the plaintiff Mary Bitner was crossing said gutter from the west side thereof, in company with Mrs. Mary Cattell, and that while they were so crossing the same, the said Mary Bitner was walking near the side of said crossing, and not suspecting or knowing the dangerous, unsafe and treacherous condition of such crossing, and without any fault, carelessness or negligence on her part, stepped on the outer end of one of the boards of such crossing, which board, being loose on account of the failure and neglect of the defendant to fasten the same as aforesaid, flew up at the opposite end thereof, and just in front, and within a foot, of the plaintiff Mary Bitner, as she was in the act of taking a step forward, when she, without any fault or negligence on her part, but by reason of the aforesaid negligence of the defendant, and before she could control the volition of her body, stumbled and fell over such uplifted board, down upon said gutter crossing," whereby she was injured, etc.

It is the duty of municipal corporations to keep all of their streets in a reasonably safe condition for travel, so as not to endanger the persons and property of those lawfully using them, and they are liable for negligently suffering them to become unsafe. Murphy v. City of Indianapolis, 83 Ind. 76; Higert v. City of Greencastle, 43 Ind. 574; Grove v. City of Fort Wayne, 45 Ind. 429; City of Lafayette v. Larson, 73 Ind. 367; City of Delphi v. Lowery, 74 Ind. 520; City of Huntington v. Breen, 77 Ind. 29, and cases cited.

In this case, the facts averred showed that the appellant was guilty of negligence in permitting the street to become unsafe for travel, and it was explicitly averred that the injury occurred "without the fault or negligence" of the appellee Mary Bitner. This paragraph of the complaint was sufficient, and, therefore, the demurrer was properly overruled.

The only reasons assigned in support of the motion for a new trial, that have been urged in this court, are, that the verdict was not sustained by sufficient evidence, that the damages were excessive, and that the court erred in giving and refusing certain instructions to the jury. We have carefully examined the evidence and find that it tends to sustain the verdict, and hence we can not disturb the verdict on the weight of the evidence. This court, in cases like this, will not disturb a verdict on the ground of excessive damages, unless they appear at first blush to...