City of Bloomington v. Woodworth
| Decision Date | 06 June 1907 |
| Docket Number | No. 6,027.,6,027. |
| Parties | CITY OF BLOOMINGTON v. WOODWORTH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.
Action by Minnie Woodworth against the city of Bloomington. From a judgment for plaintiff, defendant appeals. Affirmed.A. M. Hadley and Duncan & Batman, for appellant. Miers & Corr, for appellee.
Appellee recovered judgment against appellant for $5,000 for damages received by reason of a defective sidewalk. The action of the court in overruling appellant's motion for a new trial is the only error discussed.
The complaint charges that Seventh street, in the city of Bloomington, Ind., was much traveled between Morton and Madison streets; that the city had constructed and maintained a board walk on the south side, just east of the railroad; that it had negligently allowed and permitted the said sidewalk to become out of repair, and to so remain for a long time; that the city had knowledge of said defect; that the appellee was ignorant thereof; that she stepped into a hole in the sidewalk without any fault or negligence on her part; that she fell and received the injuries for which suit is brought. The cause was put at issue by a general denial. The evidence shows that said Seventh street runs east and west; that Morton street and Madison street run north and south; that there is a sidewalk on the south side of Seventh street between Madison and Morton streets, but no sidewalk on the north side of Seventh street; that between Madison and Morton streets the railroad tracks of the Chicago, Indianapolis & Louisville Railroad cross Seventh street; that from the point where the railroad tracks cross Seventh street eastward, about 30 feet, there is a board sidewalk; that where this board walk ends a brick pavement begins and extends on eastward to Morton street; that this wooden sidewalk or structure at its extreme eastern end crosses a ditch about 5 or 6 feet wide, which is walled up on each side; that the portion of the wooden structure which crosses this ditch, which is 5 or 6 feet long, is the so-called bridge; that there are banisters about 15 or 20 feet long on both sides of the sidewalk, extending across the so-called bridge, and about 12 or 15 feet along the sidewalk west of the west wall of said ditch; that about 5 feet from the west end of the banister was a decayed plank with a hole in the board sidewalk which was several feet west of the west wall of the ditch over which the so-called bridge extended; that plaintiff got her foot in this hole and fell, her ankle was dislocated, the ligaments torn and lacerated, and the end of the fibula fractured. Some of the witnesses spoke of the bridge as that part of the sidewalk and bridge included between the banisters.
The court refused to give to the jury instructions 3, 7, 14, and 16 requested by appellant. Said instruction 3 was to the effect that any person injured by the negligence of another should use reasonable diligence to know whether medical aid is required, and use reasonable diligence and care of himself to be cured, and he cannot recover damages for any injury which may result from a failure to exercise such care. The instruction is a correct expression of the law, but we are not referred to any evidence tending to show any negligence upon the part of appellee which would make the instruction pertinent. It appears from the evidence that she was carried in a buggy to the doctor's office very soon after receiving the injury, and her foot and ankle dressed, after which she was taken to her home. She subsequently received treatment from the same physician.
Instruction No. 7 was fully covered by instructions Nos. 6, 8, 11, and 12 given by the court at the request of appellant. The giving of No. 7 would have been a needless repetition.
No. 14 is as follows: “I instruct you that a person passing along a sidewalk or over a bridge in a city of this state has a right to believe that the same is in a reasonably safe condition for the use of pedestrians both by night as well as by day; but in using the same in the nighttime, where no light or imperfect light is furnished by said city, then, in that event, I instruct you that it is the duty of such pedestrian voluntarily passing along said street to use care and caution commensurate with the increased danger and imperfect light or darkness, and to proceed along such sidewalk with due regard to any imperfections or defects that may exist in the same.” Said instruction is fairly covered by instruction 15, given at appellant's request, in the following language: “It is the duty of a city in this state to keep its sidewalks in a reasonably safe condition, and pedestrians have a right to depend upon the fact that they will be so kept; but a pedestrian in the use of a street, either in the nighttime, when it is dark, or when from any other reason he is unable to see such sidewalk over which he desires to pass, it is his duty to use care and caution commensurate with the...
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