City of Bloomington v. Rogers

• Court: Indiana Appellate Court
• Writing for the Court: ROSS, J.
• Citation: City of Bloomington v. Rogers, 36 N.E. 439, 9 Ind. App. 230 (Ind. App. 1894)
• Decision Date: 13 February 1894
• Docket Number: 957
• Parties: CITY OF BLOOMINGTON v. ROGERS

36 N.E. 439

9 Ind.App. 230

CITY OF BLOOMINGTON v. ROGERS

No. 957

Court of Appeals of Indiana

February 13, 1894

From the Monroe Circuit Court.

Judgment reversed, with instructions to grant a new trial.

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

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

OPINION

ROSS, J.

The appellee brought this action to recover damages for injuries sustained by falling into an open and unprotected ditch in the course of construction along one of appellant's streets.

The first ruling complained of is the ruling on the demurrer to the complaint. That part of the complaint containing the gist of the action, and which appellant insists is insufficient is as follows:

"That in said city there is what is known as Madison street, which extends from First street to Eleventh street northward, but prior to the 23d day of September, 1892, the defendant caused said Madison street to be improved, and caused a deep ditch 12 feet wide and 6 feet deep to be run along on the west side of said Madison street, between Third and Fourth streets, which run east and west through said city, said ditch so made and erected being built up with perpendicular stone walls in a dangerous and unsafe manner to persons passing over said street and sidewalk on the same; that the said defendant, long prior to the said 23d day of September, 1892, carelessly and negligently constructed said ditch and walls, and carelessly and negligently maintained said ditch in a dangerous and unsafe manner, in this, to wit, that it wholly failed to place any guard rails on either side of said ditch to keep persons traveling over said street from falling into the same, when traveling said street in the darkness of the night; that said defendant also carelessly and negligently failed to keep any lights, or other danger signal, in the vicinity of said ditch, to guard persons traveling over said street from falling into said ditch, and plaintiff further alleges that long prior to the grievances hereinafter alleged, to wit, on the 23d day of September, 1892, said ditch so constructed in the manner herein set forth, the defendant had full knowledge that said ditch, so erected and maintained, was dangerous and unsafe to foot passengers who passed by and near the same; that on said 23d day of September, 1892, this plaintiff, while passing on the west side of said ditch between Third and Fourth streets, at the hour of ten o'clock at night of said day, and while endeavoring to go to her home in a careful and guarded manner, and without any knowledge and without being able to see the location of said ditch, without any fault on her part whatever, and without the aid of any lights or guard rails, she stepped and fell to the bottom of said ditch, a distance of six feet."

The insistence of appellant is that there is no allegation in the complaint, that the appellee was ignorant of the condition of the street and the unprotected condition of the ditch. In this respect we think the complaint sufficient. It is alleged that the appellee, "while endeavoring to go to her home in a careful and guarded manner and without knowledge and without being able to see the location of said ditch," fell into said ditch and was injured. The allegation as to want of knowledge is somewhat general and indefinite, but if not sufficiently specific appellant's remedy was by a motion to make the allegation more specific.

On a trial of the cause the jury returned a special verdict as follows:

"We find that on the 23d day of September, 1892, the defendant was a municipal corporation, incorporated under the laws of the State of Indiana, and, as such, had control and management of the streets and sidewalks of said city.

"We further find that on said 23d day of September, 1892, there was in said city of Bloomington a street known as Madison street, which ran north and south, and crossed both Third and Fourth streets, which said last named streets ran east and west through said city, and that plaintiff's residence was on the corner of Third and Madison streets and on the west side of said Madison street.

"We further find that said defendant, prior to said 23d day of September, 1892, had improved said Madison street, and had dug and constructed a ditch about 12 feet wide and 5 1/2 feet deep on the west side of said Madison street, between Third and Fourth streets, which ditch extended about 100 feet north and south, and parallel with the sidewalk running north and south from plaintiff's residence.

"We further find that in construction of said ditch, the east and west walls of the same were built perpendicular of stone to a height about equal to the surface of the ground of the pavement west thereof, and that no bannisters or guard rails had been placed on either side of said ditch to protect travelers from falling into the same, and had failed and neglected to place any lights or danger signals near said ditch, so that persons might see the same in the darkness of the night, and that while thus unprotected said ditch was dangerous and unsafe to persons passing by it in the night time, and that said defendant and its officers had knowledge or with reasonable diligence could have known, the manner of the construction of said ditch, and its unsafe condition on the said 23d day of September, 1892, and prior thereto.

"We further find that the pavement west of said ditch, leading north from plaintiff's residence, was six feet wide, when laid, and was the most direct and convenient way for plaintiff to travel in going northeastward across said Madison street, and returning to and from the business portion of said city, and the width of the pavement grounds, between the west wall of said ditch and the embankment on the west, was 11 feet and the distance from said bridge north of said Brogan's residence was about 15 feet, and we find that on said 23d day of September, 1892, the defendant was also improving said pavement west of said ditch, and had hauled dirt and partially leveled the same down preparatory to putting down pavement, to a width of about 11 feet. And, at the west line of said dirt, had left an embankment of about 2 1/2 feet, sloping down to the lot west thereof, said embankment extending about 100 feet north of said plaintiff's residence.

"We further find that on said 23d day of September, 1892, the plaintiff left her home in the evening, while it was yet light, and went northward over said pavement ground parallel with said ditch on a bridge over the same, north of the residence of one John Brogan, whose residence was then on the lot immediately north of plaintiff's lot, and west of said ditch and pavement ground; that she went to the southeast corner of the public square and business portion of said city; that she returned from the north about nine o'clock at night, when it was dark, of said day, and stopped at the east window of the residence of said Brogan from which window a lamp-light shone out eastward over said pavement in front of said residence; that the plaintiff, at said time, had reasonably good eyesight, and started from said residence southward on and along said pavement ground, and attempted to walk carefully to her house, while the night was dark, but by reason of the darkness of the night, and there being no guard rails on the west side of said ditch at a point twenty-three feet south of said window, and there being no lights or other danger signals by which she could see the location of said ditch and the walks thereof, she stepped over the west...