City of Bluffton v. McAfee

• Court: Indiana Appellate Court
• Writing for the Court: DAVIS, J.
• Citation: City of Bluffton v. McAfee, 12 Ind. App. 490, 40 N. E. 549 (Ind. App. 1895)
• Decision Date: 26 April 1895
• Docket Number: 1,556
• Parties: THE CITY OF BLUFFTON v. MCAFEE

40 N.E. 549

12 Ind.App. 490

THE CITY OF BLUFFTON v. MCAFEE

No. 1,556

Court of Appeals of Indiana

April 26, 1895

From the Wells Circuit Court.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

A. L Sharpe and C. E. Sturgis, for appellant.

E. R Wilson and J. J. Todd, for appellee.

OPINION

DAVIS J.

This was an action brought by the appellee, plaintiff below, to recover damages for personal injuries sustained by a fall in passing over an alleged defective alley crossing in the city of Bluffton. In the city of Bluffton is a street known as Wabash street, running east and west in the residence portion of the city. On each side of this street there is a sidewalk, and crossing the street at right angles there is an alley separating the property of one William S. Kapp from that of a Mrs. Helms. Along the south side of Wabash street a board sidewalk leads up to the east side of this alley; then there is a plank crossing across the alley, possibly two inches lower than the sidewalk leading up to it. Then on the other side, or west side, of the alley there is a continuation of the board sidewalk, also an inch or two higher than the alley crossing. The sidewalk on each side of the alley crossing was about five feet wide, and the crossing was between three and four feet wide. The crossing was constructed of planks two inches in thickness and about four inches wide. These planks were laid lengthwise upon stringers buried in the earth so that the planks were flat upon the ground. The second plank from the north side of the alley crossing was broken at the extreme east end thereof, making a hole about four inches wide, ten or twelve inches long and about four inches deep from the top of the sidewalk immediately east of it, or two inches deep from the top of the crossing. This hole was within four inches of the north side of the alley crossing. The rest of the crossing was in good condition, leaving a good passage way on the crossing more than two and a half feet wide. It appears that the defect was not a hidden one, but was one which was open and obvious to the sight. About half past two o'clock in the afternoon of the 11th of July, 1895, a bright sunshiny day, the appellee, accompanied by a lady friend, was walking along this sidewalk going from east to west, wheeling a baby carriage containing her child, in front of her. At the time appellee was four or five months advanced in pregnancy. In passing over the alley crossing above referred to appellee accidentally stepped into the hole in the crossing and fell forward on her knee. From alleged injuries received by this fall, appellee claims that a miscarriage was produced, and that she otherwise suffered greatly.

Appellee resided in the immediate vicinity, and she testified that she passed over this crossing about one month before the accident, and that when she went over the crossing on the occasion when she was injured she knew the hole was there "but didn't think of it at the time."

The only fact found by the jury in relation to the care exercised by appellee at the time of the injury is...