City of Gary v. Wilson

• Decision Date: 04 May 1937
• Docket Number: No. 15402.,15402.
• Citation: 8 N.E.2d 109,103 Ind.App. 376
• Parties: CITY OF GARY v. WILSON et al.
• Court: Indiana Appellate Court

103 Ind.App. 376

8 N.E.2d 109

CITY OF GARY

v.WILSON et al.

No. 15402.

Appellate Court of Indiana, in Banc.

May 4, 1937.

Appeal from Jasper Circuit Court; Moses Leopold, Judge.

Action by Betty Wilson, by Hazel Wilson, her mother and next friend, against the City of Gary, Lake County, and others. From a judgment for plaintiff, named defendant appeals.

Affirmed.Harry Long, Roswell B. Johnson, and Gilbert Gruenberg, all of Gary, for appellant.

McMahan, Strom & Hulbert, of Gary, for appellees.

BRIDWELL, Presiding Judge.

This appeal is from a judgment rendered in an action brought by Betty Wilson by her next friend, Hazel Wilson, against appellant and the appellees Louis Goodman and Etta Goodman, to recover damages for personal injuries sustained in a fall alleged to have been caused by defects in an iron grating constituting a part of the surface of a public alley in the City of Gary, Ind., and covering an opening or a hole which abutted a two-story brick building which the complaint avers was owned by the appellees Goodman and Goodman. An answer of general denial to the complaint was filed by all defendants thereto. Upon the issues thus formed the cause was submitted to the court for trial, which resulted in a finding for the plaintiff against the defendant City of Gary in the amount of $400, and in favor of defendants Goodman and Goodman. Judgment in accordance with the finding followed. Appellant duly filed its motion for a new trial, assigning as causes therefor that the finding of the court is not sustained by sufficient evidence, and that the finding of the court is contrary to law. This motion was overruled; appellant excepted, and thereafter perfected this appeal, assigning as error the overruling of said motion.

Appellant's contentions evidenced by its two propositions stated under that heading of its briefs devoted to “Propositions and Authorities” are: (1) “There was a fatal variance between the notice served upon the city and the evidence introduced at the trial as to the location of the defect which caused the injury complained of”; (2) “under the pleading and the evidence the finding in favor of the appellees Goodman and Goodman precluded any finding against the appellant city.”

The notice served upon the city and introduced in evidence is as follows:

“Notice of Injuries by Reason of Defects in Street

“To the City of Gary and John Dwyer, Clerk of the City of Gary:--

“The City of Gary and the Clerk thereof are hereby notified that on or about July 14th, 1932 about 9:30 A. M. Betty Wilson, nine (9) years of age of 22 East Fifth Avenue, Gary, Indiana, received personal injuries when she slipped into a hole in an iron grating in the cement surface of the alley which runs north and south between Broadway and Massachusetts Street in Gary, Indiana, at a point in the said alley approximately fifty feet north of the north curb line of Fifth Avenue; that said grating was approximately six feet long and two feet wide and covered a hole approximately 5 feet deep; that said grating covering said hole had a hole approximately eight inches in diameter in its south end and that it was through this hole that the said Betty Wilson slipped and injured herself; that said grating and the hole covered by said grating are on the east side of said alley and abutting the building known as 22 East Fifth Avenue;

“You also are notified that the grating covering said hole was dangerous and defective at the time that said Betty Wilson slipped into it and was injured and that said grating had been defective for many months prior thereto; that the said Betty Wilson received severe lacerations upon her leg and she also injured her back as a result of slipping into said hole; that the said City of Gary was negligent in permitting said hole to remain in said grating and that the said City of Gary is therefore responsible for said injuries to the said Betty Wilson.

“[Signed] Betty Wilson

“Hazel Wilson, her mother.

“I, John Dwyer, Clerk of the City of Gary, acknowledge that the above and foregoing notice of Betty Wilson was served upon me as such Clerk and a copy thereof left with me this 15 day of August, 1932.

“[Signed] John Dwyer,

“Clerk, City of Gary.”

The evidence relative to the location of the iron grating where the injury occurred is not without conflict, nor does the evidence of any witness locate such grating at a point in the alley 50 feet north of the north curb line of Fifth avenue. It does disclose that there were two gratings, both on the east side of said alley and abutting the building at 22 East Fifth avenue, the one farthest north, according to the testimony of the witness who locates it at the greatest distance shown by any of the evidence, being located 15 feet north from the grating where the injury was sustained. Whether there was any defect whatever in the grating farthest north, which was approximately 50 feet from the north curb line of Fifth avenue, is...