City of Evansville v. Pifer
| Decision Date | 18 December 1912 |
| Docket Number | No. 7,787.,7,787. |
| Parties | CITY OF EVANSVILLE et al. v. PIFER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Warrick County; Roscoe Kiper, Judge.
Action by Mollie Pifer against the City of Evansville and another. From a judgment for plaintiff, defendants appeal. Affirmed.Edgar Durre, C. T. Curry, and Geo. A. Cunningham, all of Evansville, for appellants. Samuel Crumbaker, of Evansville, John W. Spencer, of Indianapolis, and John R. Brill and Frank H. Hatfield, both of Evansville, for appellee.
The appellee recovered a judgment against both appellants for personal injuries. Each of appellants addressed a separate demurrer to the complaint, and both of such demurrers were overruled. This ruling of the court is assigned as error.
[1] From the averments of the complaint it appears that prior to the injury to appellee the Hollerbach & May Contract Company had entered into a contract with its codefendant, the city of Evansville, by which it agreed to construct in said city a sewer known as the Kentucky avenue sewer, and that it had entered upon the prosecution of such work. It further appears that appellee was injured on the night of February 22, 1909, by falling over a board which had been placed on the concrete sidewalk on Monroe avenue by the defendant company in the prosecution of the work of constructing the sewer. On the subject of negligence the complaint contains the averments “that said defendants permitted and negligently permitted and allowed said plank or board to remain upon said concrete sidewalk on said Monroe avenue for a period of four or five days prior to and upon the said 22d day of February, 1909; that said plank or board so left upon said sidewalk had no light placed upon the same and no guard placed upon, around, or near said plank or board by which the attention of this plaintiff or others who might be lawfully walking upon said sidewalk would be attracted thereto; *** that said defendants had notice of said condition in time to have prevented the injury to this plaintiff, and that the said city of Evansville retained at all times the right to supervise and control the construction of said sewer.” The complaint also charges, in effect, that the condition above described was upon a public sidewalk in a thickly populated and much traveled part of the city, and that appellee, while walking in a careful and prudent manner along the street on a dark and rainy night, tripped upon the plank and fell, and was injured; that her injuries were caused by the negligence of defendant in permitting the plank to be placed and to remain upon the sidewalk as above set out. A fuller statement of the averments of the complaint is not necessary to an understanding of the questions raised.
Appellants claim that the complaint does not state facts sufficient to show a duty on the part of either of them to place lights or guards in the vicinity of the plank so left upon the sidewalk for the purpose of warning pedestrians of its presence, and in support of this contention it is said that there is no averment in the complaint that the condition created by the presence of the board upon the sidewalk was a dangerous condition, or that it rendered the sidewalk unsafe for travel. The board which is alleged to have been placed and permitted to remain upon the sidewalk is described in the complaint as a plank 8 or 10 feet in length, 8 or 10 inches wide, and 2 inches thick; and it is alleged that it was in the traveled part of a concrete sidewalk with no lights or guards to indicate its presence. There is no doubt that this board constituted an obstruction to the sidewalk, but whether the obstruction so created was of such a character as to render the contractor and the city liable on the ground of negligence depends upon its character, location, and surroundings. If its character, location, and surroundings were of such a nature as to indicate to a person...
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