City of Bloomington v. Rogers

• Decision Date: 18 September 1895
• Docket Number: 1,583
• Citation: 41 N.E. 395,13 Ind.App. 121
• Parties: CITY OF BLOOMINGTON v. ROGERS
• Court: Indiana Appellate Court

41 N.E. 395

13 Ind.App. 121

CITY OF BLOOMINGTON v. ROGERS

No. 1,583

Court of Appeals of Indiana

September 18, 1895

From the Lawrence Circuit Court.

Judgment reversed.

I. C Batman and H. C. Duncan, for appellant.

J. R East and R. G. Miller, for appellee.

DAVIS J. Ross, J., concurs in result.

OPINION

DAVIS, J.

This case is here for the second time. City of Bloomington v. Rogers, 9 Ind.App. 230, 36 N.E. 439. On return to the lower court, the venue of the cause was changed, and a trial by a jury resulted in a special verdict on which judgment was rendered in favor of appellee for sixteen hundred dollars.

The jury find, among other facts, that appellee knew the ditch was in the street; that the night was dark; that she had reasonably good eyesight, and that she was walking slowly and carefully when she was injured.

There is no finding that she was using her sense of sight or that she had the ditch in mind at the time, nor that, in view of her knowledge of its existence, she was looking out for the ditch or paying attention to where she was going.

Neither is the inferential fact found that she was, under the circumstances, using due care and caution on her part at the time she was injured. City of Bluffton v. McAfee, 12 Ind.App. 490, 40 N.E. 549; Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, 34 N.E. 714; Louisville, etc., R. W. Co. v. Costello, 9 Ind.App. 462, 36 N.E. 299; Louisville, etc., R. W. Co. v. Sears, 11 Ind.App. 654, 38 N.E. 837; Pittsburgh, etc., R. W. Co. v. Klitch, 11 Ind.App. 290, 37 N.E. 560.

The finding in a special verdict, that an injured party, at the time of receiving the injury, was in the exercise of due care, is, in many cases, such a conclusion as should be disregarded, but when two inferences may be reasonably drawn from the facts and circumstances descriptive of the acts and conduct of the injured party, at the time of receiving the injury, then, under the authorities cited, it becomes a question for the jury to determine whether the injured party did or did not exercise ordinary care under the circumstances surrounding her when she was injured. The facts descriptive of appellee's conduct on this occasion are not fully and clearly found in the special verdict. If it appeared in the special verdict, in addition to the facts therein found descriptive of her conduct, that she had the ditch in mind, at that time, and that in view of this knowledge she was using her sense of sight in looking out for the ditch, or paying attention to where she was stepping, and then on the facts and circumstances so found, the jury should draw and find the inference that she was using due care and caution on her part when she was injured, the verdict would perhaps be sufficient, under the rule enunciated in the...