City of Evansville v. Pifer
| Decision Date | 18 December 1912 |
| Docket Number | 7,787 |
| Citation | 100 N.E. 110,51 Ind.App. 646 |
| Parties | CITY OF EVANSVILLE ET AL. v. PIFER |
| Court | Indiana Appellate Court |
From Warrick Circuit Court; Roscoe Kiper, Judge.
Action by Mollie Pifer against the city of Evansville and another. From a judgment for plaintiff, the defendants appeal.
Affirmed.
George A. Cunningham, Edgar Durre and C. T. Curry, for appellants.
Samuel E. Crumbaker, John W. Spencer, John R. Brill and Frank H Hatfield, for appellee.
Appellee received a judgment against both appellants for personal injuries. Each appellant addressed a separate demurrer to the complaint, and both of such demurrers were overruled. This ruling of the court is assigned as error.
From the averments of the complaint it appears that prior to the injury to plaintiff, the Hollerbach & May Contract Company had entered into a contract with its co-defendant, 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 on the prosecution of such work. It further appears that plaintiff 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 defendant company in the prosecution of the work of constructing the sewer. On the subject of negligence the complaint contains the following 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 22nd 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 alleges, in effect, that the condition above described was on a public sidewalk in a thickly-populated and much-traveled part of the city, and that plaintiff, while walking in a careful and prudent manner along the street on a dark and rainy night, tripped on the plank and fell, and was thereby injured; that her injuries were caused by the negligence of defendants in permitting the plank to be placed and to remain on 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 of guards in the vicinity of the plank, so left on 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 on 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 on the sidewalk, is described in the complaint as a plank eight or ten feet in length, eight or ten inches wide and two inches thick; and it is alleged that it was on 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 on 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 on its character, location and surroundings. If its character location and surroundings were of such a nature as to indicate to a person of ordinary prudence that the condition created by its presence was likely to produce or cause some injury to someone in the use of the sidewalk, then the plank described is to be regarded as a negligent obstruction of the sidewalk. On the trial of the case, it was for the jury to say, from a consideration of the evidence, whether the plank...
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