City of East Chicago v. Gilbert

• Citation: 59 Ind.App. 613,108 N.E. 29
• Decision Date: 03 March 1915
• Docket Number: No. 8480.,8480.
• Parties: CITY OF EAST CHICAGO v. GILBERT.
• Court: Court of Appeals of Indiana

59 Ind.App. 613

108 N.E. 29

CITY OF EAST CHICAGO

v.GILBERT.

No. 8480.^d1

Appellate Court of Indiana, Division No. 2.

March 3, 1915.

Appeal from Circuit Court, Lake County; W. C. McMahon, Judge.

Action by Kate A. Gilbert against the City of East Chicago. Judgment for plaintiff, and defendant appeals. Affirmed.A. Ottenheimer, of East Chicago, and L. V. Cravens, of Hammond, for appellant. Gavit & Hall, of Whiting, and W. B. Van Horne, of Indiana Harbor, for appellee.

CALDWELL, P. J.

Action by appellee to recover damages for personal injuries sustained in a fall alleged to have been caused by defects in a sidewalk in the city of East Chicago. Verdict and judgment for appellee in the sum of $6,000.

The errors assigned and not waived are the insufficiency of the complaint, the ruling on the demurrer to the complaint, and the overruling of the motion for a new trial. Appellant argues that the complaint is insufficient by reason of the following: First, that it does not appear from the averments that the defects in the sidewalk complained of resulted from the failure of the city to perform any duty incumbent on it; second, that the complaint does not charge appellant with knowledge, actual or constructive, of the existence of such defect for a sufficient time prior to the injury that by reasonable diligence the city might have remedied it; and, third, that the proximate cause of the injury, as disclosed by the complaint, was the absence of light upon the street and in the vicinity of the defective conditions, and that the lighting of the streets is a governmental function, upon a failure to perform which actionable negligence cannot be predicated.

[1] As to the first objection, the complaint discloses that appellant is a municipal corporation, duly organized as a city. Such being the case, it owes to the public the duty to use reasonable care to keep the streets and sidewalks as a part thereof included within its limits in a reasonably safe condition for the use of travelers. It sufficiently appears from the complaint that appellant failed to perform such duty, in that it negligently permitted a certain public sidewalk in said city, extending along a certain public street therein, to become and remain out of repair. The complaint is therefore not open to the first objection. Turner v. City, 96 Ind. 51;Touhey v. City, 175 Ind. 98, 93 N. E. 540, 32 L. R. A. (N. S.) 350;City v. Behme, 49 Ind. App. 448, 97 N. E. 565;Dooley v. Town, 112 Ind. 451, 14 N. E. 566, 2 Am. St. Rep. 209.

[2] On the subject of the second objection, the allegations of the complaint are as follows:

“That for more than six months immediately prior to the time plaintiff received her said injury, and continuing until said injuries were received, the said sidewalk had been defective, dangerous, and out of repair at the point where plaintiff received her said injuries, in this: That the planks constituting the same were rotten, defective, and broken, and at said time a hole had existed in said sidewalk sufficient in size to admit of a person's foot going through the same.”

It is averred that appellee had no knowledge of such defective condition, and that “defendant had full and complete knowledge and notice of said defective condition of said sidewalk for six months prior to said injury.” There are other averments to the effect that said sidewalk consisted of wooden stringers laid lengthwise and of boards placed crosswise thereon, and that such boards were about six inches from the ground; that appellee, while proceeding carefully along said sidewalk, stepped into said hole, and was thereby thrown to the walk and injured as alleged. Appellant's argument is that it is averred that appellant had knowledge of “said defective condition,” but there is no averment that it had knowledge of the existence of the hole. We cannot adopt appellant's construction of the complaint. In the quoted portion of the complaint, there is a general allegation of the defective condition of the sidewalk, followed by a particular description thereof. Included in the enumeration of the particulars is an allegation of the existence of a hole in the sidewalk. We think it apparent that the allegation of appellant's knowledge relates to such general description as so particularized. Town v. Ritter, 66 Ind. 136; Turner v. City, supra; City v. De Witt, 47 Ind. 391;City v. Lusch, 33 Ind. App. 480, 70 N. E. 402;City v. Smith, 31 Ind. App. 546, 68 N. E. 617;City v. Chester, 176 Ind. 636, 96 N. E. 765; 28 Cyc. 1469, 1470.

[3][4] As to the third objection, the complaint alleges that appellant carelessly and negligently permitted said sidewalk to remain in said defective condition, without any light, barrier, etc., and that a person traveling along such sidewalk was unable to see said hole, etc., and that appellee was unable to see it, and did not see it, on account of the darkness, and “that plaintiff's said injuries were caused solely by the carelessness and negligence of defendant above alleged.” We do not construe the complaint as predicating negligence upon the failure to light the street or to place lights in the vicinity of the defect in the sidewalk. The negligence is respecting the condition of the sidewalk. The absence of light is an incident. It is possible for the surrounding conditions to be such as to render an act or omission negligence, when, in the midst of different surroundings, it might be otherwise.

“If an obstruction exists that creates an actionable nuisance, the presence of lights might render that nuisance nonactionable by disclosing it.” Shreve v. City, 176 Ind. 347, 350-352, 96 N. E. 7. See, also, City v. Pifer, 51 Ind. App. 646, 100 N. E. 110.

The complaint is sufficient.

[5][6] In order that a claim, such as is involved here, may be sustained by suit, the statute requires that a notice in writing, “containing a brief general description of the time, place, cause, and nature” of the injury, be served on certain designated officers within a specified time. Section 8962, Burns' R. S. 1914. The question of the sufficiency and accuracy of the notice, as descriptive of the place where appellee in fact received her injury, is properly presented. As related to such element, the notice is as follows:

“While walking on the wooden sidewalk on Commonwealth avenue, between Michigan avenue and Washington street, on the northeast side of said street immediately in front of lot 29, block 18, Indiana Harbor, a subdivision known as No. 3353-3355 Commonwealth avenue, in the city of East Chicago, Lake county, Ind., I stepped into a hole in said sidewalk, *** and was thrown *** and fell on my right side, and was injured on my right side and limb, spraining my right hip,” etc.

It is not contended that such notice is defective or insufficient on its face, but that measured by the real place where appellee fell, as shown by the evidence, it constitutes such a wide variance as that it was error to admit it in evidence. In determining whether there is such a variance, it is proper to resort to the evidence, not for the purpose of supplementing the notice or to supply deficiencies therein, but rather to apply the notice to the situation as it appears on the ground. Carson v. City, 81 Neb. 681, 116 N. W. 673;Benson v. City, 101 Wis. 312, 77 N. W. 161;Buchmeier v. City, 138 Iowa, 623, 116 N. W. 695.

The evidence shows that Commonwealth avenue extends southeastward from Michigan avenue one block to Washington street, and that the building lots along the northeast side of Commonwealth avenue are numbered from 17 to 29, inclusive, and consecutively from Michigan avenue to said street. The lots are 50 feet wide. The place where appellee was hurt was in front of lot 27, and about 15 feet north of the north line of lot 28, and consequently about 65 feet from lot 29 described in the notice. There was a dwelling house on each of said lots, which houses bore street numbers as indicated by number plates. On the northeast side of the street odd numbers were used, and two of such numbers were set apart for each of such lots, so that lot 26 was numbered 3349; lot 27, 3353; lot 28, 3357; and lot 29, 3361. Under this system, there was no house numbered 3355. It will be observed that the notice described the place of injury with sufficient accuracy, if we look only to the house numbers, since such notice is to the effect that the place was in front of No. 3353 Commonwealth avenue. The sidewalk in front of lot 27, and also north of 25, was in bad condition. South of lot 27 it was in a better condition. In front of 27, the walk was uneven, by reason of boards that were settled and warped. Under the evidence, it is doubtful whether there was more than one hole in the sidewalk in front of lot 27. This was the hole in which appellee stepped. It was about 3 inches wide at the wide end, and about 22 inches long. If there was more than one hole at said point, this one in particular had attracted the attention of persons using the walk. In view of the fact that the notice stated that the accident happened in front of lot 29, taken with the other statements contained in the notice, and considering the physical surroundings, as shown by the evidence, was this notice effective? The provisions of said statute are mandatory, and the giving of notice is a condition precedent to a right of action. Touhey v. City, supra, in so far as concerns the requirement that the notice be given, and within the time specified, and to the proper officers, the statute is strictly construed. Touhey v. City, supra; Peoples v. City, 178 Ind. 673, 100 N. E. 70;City of Morrow, 54 Ind. App. 538, 101 N. E. 659. But on the question of whether or not a notice in fact given is sufficiently definite as to the time, place, nature, etc., of the injury, the rule of liberal construction is generally adopted by the courts. Pearll v. Bay City, 174 Mich. 643, 140 N. W. 938;Hammock v. City, 40 Wash. 539, 82 Pac. 893;Judd v. City, 81...