City of Fort Wayne v. Breese

• Decision Date: 22 March 1890
• Docket Number: 14,120
• Parties: The City of Fort Wayne v. Breese
• Court: Indiana Supreme Court

23 N.E. 1038

123 Ind. 581

The City of Fort Wayne v. Breese

No. 14,120

Supreme Court of Indiana

March 22, 1890

Petition for a Rehearing Overruled May 15, 1890.

From the Allen Superior Court.

Judgment affirmed, at costs of appellant.

H Colerick, for appellant.

J. B Harper, for appellee.

OPINION

Olds, J.

This action was brought by the appellee against the appellant to recover for damages alleged to have been sustained by her in falling upon a public sidewalk in the city of Fort Wayne. Issue was joined, and there was a trial, resulting in a verdict and judgment in favor of appellee for $ 1,040. Appellant filed a motion for a new trial, which was overruled, and exceptions reserved. Two errors are assigned: 1st. That the complaint does not state facts sufficient to constitute a cause of action; and, 2d. That the court erred in overruling the motion for a new trial. The first alleged error is not discussed, and is therefore waived.

A reversal of the judgment is asked, for two reasons: First. It is claimed that the undisputed evidence shows the appellee to have been guilty of contributory negligence; and, Second. That the damages are excessive.

Interrogatories were submitted to and answered by the jury. The interrogatories and answers are as follows:

"1st. Were the planks, boards and stringers upon the sidewalk in such a condition as to be dangerous for two persons to travel side by side upon them and at the same time? Ans. Yes.

"2d. Could not the plaintiff see the condition of the walk? Ans. Yes.

"3d. Was not the walk dangerous? Ans. Yes.

"4th. Did not plaintiff voluntarily assume the danger of going upon and over said walk? Ans. No.

"5th. Did not the plaintiff know, before she was injured, that the planks upon the walk were loose and unfastened? Ans. No.

"6th. Did plaintiff know that by walking upon the ends of the boards upon said walk that the same would rise and throw the other end up? Ans. No."

It is conceded by counsel for the appellant that the sidewalk was out of repair and dangerous, and that the city was guilty of negligence, but the sole ground of complaint is that the evidence shows the appellee guilty of contributory negligence.

It is well settled by numerous decisions of this court, that one is not bound to abandon the use of a street or sidewalk, even if he knows it to be out of repair, unless the condition of the street or sidewalk be so defective as to render it impassible, or as to be apparent to a person of common understanding that to enter upon it at all would be dangerous.

A succinct statement of the law is stated by Mitchell, J., in delivering the opinion of the court in the case of Town of Gosport v. Evans, 112 Ind. 133, 13 N.E. 256, as follows:

"The doctrine to be extracted from these cases is, that although a sidewalk or highway may be in an apparently defective or dangerous condition, yet a person with knowledge of the defect or danger is not on that account obliged to abandon travel upon the highway, if, by the exercise of care proportioned to the known danger, he may reasonably expect to shun or avoid the defect. If the defect be one which does not render the way wholly impassable, and which can only result injuriously to the traveler if not shunned, if there be an apparently safe way of passing without going into the obvious defect, the traveler is not to be held to a rigorous account if he is deceived or misled, notwithstanding his effort to avoid the danger."

This rule of law is not seriously controverted by counsel for the appellant or appellee, but the controversy is rather in applying the rule to facts in the case, counsel differing widely as to what the evidence establishes. We think this statement of the law conclusive of the case, and that the verdict of the jury and judgment must be sustained. The answers to interrogatories fully support the verdict, and if there is evidence to support the general verdict...