City of Bluffton v. McAfee

• Decision Date: 24 May 1899
• Docket Number: 2,851
• Citation: 53 N.E. 1058,23 Ind.App. 112
• Parties: CITY OF BLUFFTON v. MCAFEE
• Court: Indiana Appellate Court

53 N.E. 1058

23 Ind.App. 112

CITY OF BLUFFTON v. MCAFEE

No. 2,851

Court of Appeals of Indiana

May 24, 1899

Rehearing denied October 24, 1899.

From the Adams Circuit Court.

Affirmed.

C. E Sturgis, for appellant.

Levi Mock, John Mock, George Mock and France & Merryman, for appellee.

OPINION

ROBINSON, J.

Appellee recovered a judgment for damages for injuries caused by a defective sidewalk. For the opinion upon the former appeal see City of Bluffton v. McAfee, 12 Ind.App. 490, 40 N.E. 549.

Wabash street in the city of Bluffton runs east and west, and is one of the principal streets of the city. On the south side of the street are the lots of W. S. Kapp and Mrs. Helms, separated by an alley. In front of these lots are sidewalks, and across the alley is a wooden crossing about four and one-half feet wide. Appellee was injured by stepping into a hole in this alley crossing as she passed onto it from the Kapp sidewalk. The jury found that appellee and a lady friend were walking along the Kapp walk approaching the alley crossing from the east, the friend walking on the south side of appellee; that the west end of the Kapp walk was four inches higher than the east end of the alley crossing where they joined; that there was a hole in the east end and north of the center of the crossing next to the sidewalk five inches wide, twelve inches long, four inches deep from the top of the crossing, and eight inches deep from the top of the sidewalk; that appellee was wheeling a baby carriage in front of her with her child therein as she was walking over the Kapp walk up to the crossing; that she was walking slowly and carefully, and was looking ahead at the walk as she came up to the hole; that she wheeled the carriage over the hole, the wheels going on either side; that she did not know of the dangerous condition of the place and did not know of the hole at the time; that she had passed over the walk but once during the year preceding the injury, which was about a month before, and knew of the defect at that time, but did not know of it when injured; that she was about twenty-one years old, had good eyesight, had lived in Bluffton all her life, and had lived for about a year within two squares of the place in question; that the accident happened about 2 o'clock on a bright, clear, July day; that the carriage prevented her from seeing the defect; that by looking over the carriage she could see the walk within a distance of ten feet in front of her; that as she approached the crossing she was looking straight ahead and at the sidewalk in front of her; that there were other obstructions besides the carriage between appellee and the defect; that appellee, as she approached the crossing, was walking in a slow and careful manner, but she did not know the defect was there; that she was not looking for the defect nor thinking of it; that the hole had been in the walk about six months before the accident, and for that length of time its condition was known to the mayor and street commissioner of the city; that appellee was permanently injured by the fall.

The answers to the interrogatories, and they are supported by the evidence, clearly establish the negligence of the city.

It is argued that appellant should have had judgment on the answers to interrogatories notwithstanding the general verdict. Whether appellee, at the time of the injury, knew of the defect was a fact for the jury to find, and they say she did not. This is in no sense inconsistent with the finding that she did know of the defect when she passed by it a month before. She might have known of it a month before, but that did not necessarily charge her with knowledge of it when injured. She was charged with no duty with reference to it, and the question was not whether she had at some prior time known of it, but whether she knew of it at the time of the injury.

It is further argued that the answers show that appellee did not think of the defect, was not looking for it, and was not trying to avoid it. This might all be true in view of the fact that she did not know there was such a defect. She could not be expected to be looking for a defect unless she knew one existed. She was bound to use care to avoid it if such existed, but she was not bound to anticipate that there would be a defect in the crossing. She was not required to keep her eyes constantly on the walk looking for obstructions. She had the right to presume, and to act on the presumption, that the street was reasonably safe for ordinary travel. The jury say that, by looking over the carriage, she could see the walk a distance of ten feet in front of her. But they also say there were other obstructions besides the carriage between her and the defect. Although she could see the walk ten feet in front of her, it does not necessarily follow that she could see the defect by looking over the carriage. When we look to the evidence we find what these other obstructions were. There was evidence that the crossing was made of planks laid lengthwise; that the hole was made by the end of one of these planks splitting off in a triangular shape, making the hole twelve or thirteen inches long, four or five inches wide next to Kapp's walk, and tapering to a point at the other end; that the end of the Kapp walk was about four inches higher than the crossing; that the hole was immediately next to and adjoining the end of the Kapp walk. Taking this evidence, it is self-evident that there were other obstructions besides the carriage...