City of Goshen v. England

Decision Date19 June 1889
Citation119 Ind. 368,21 N.E. 977
PartiesCity of Goshen v. England.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Elkhart county; James D. Osborn, Judge.Wilson & Davis, for appellant. Baker & Defrees, for appellee.

Olds, J.

This is an action brought by Ann England, appellee, against the city of Goshen, appellant, for damages sustained by reason of the negligence of the appellant, and without fault of the appellee. She caught her foot in a hole in a sidewalk in the city of Goshen, and thereby broke her limb. Issue joined. Trial. Verdict and judgment for $500. The error assigned and discussed is the overruling of the motion for a new trial. The first cause of complaint is sustaining appellee's challenge of John Lehman, a juror, for cause that said juror resided in the city of Goshen, and paid taxes on personal property therein. It has been held by this court, and is now the settled law of this state, that, in an action against a city for damages resulting from an injury received by reason of a defect in the street or sidewalk, the fact that a juror is a resident tax-payer of the city is a good cause for challenge of such juror. Town of Albion v. Hetrick, 90 Ind. 545, 549, 550;Hearn v. City of Greensburgh, 51 Ind. 119. In the case of Williams v. City of Warsaw, 60 Ind. 457, an action to recover the penalty for the violation of an ordinance prohibiting the keeping of gaming-tables and allowing minors to play thereon, some decisions of the courts of other states are cited by the court in support of the theory that, in an action of that character, the fact that a juror is a tax-payer of the city is not cause for challenge; but the question is not decided in that case, and our decisions are uniform in holding this to be a good cause for challenge. The court also sustained appellee's challenge to Fuller as a juror. Fuller was called by the sheriff as a talesman; and he had served on the jury in the same court as a talesman in another cause some days previous, and at the same term of court. This ruling of the court was proper. Section 1395, Rev. St. 1881, makes it unlawful for an officer charged with the selection of a panel of petit jurors to select any person to serve as such juror who has served as a juror during the year immediately preceding, and provides that such fact shall be cause for challenge. Barker v. Hine, 54 Ind. 542. It is further contended that the court erred in sustaining the challenge of the appellee to the juror William Kyte. From the examination of Kyte touching his competency, it appears that there was one of the regular panel of the jury absent, and that this juror was placed upon the jury in the place of such absent juror, and he had served as a juror on the trial of causes at the term of court up to the impaneling of the jury in this cause. It does not appear from the record that the court ordered the vacancies in the regular panel to be filled by persons to be selected by the sheriff, and that the jurors thus selected should constitute a part of the regular panel for that term. If such fact appeared from the record, it would thus present the question discussed by counsel, that there was an absent juror, and that the juror Kyte was selected by the sheriff by the order of the court to constitute a regular juror for the term, and that he was thereby a regular juror, and not subject to be challenged on the ground that he had served as a juror during that term of court. It is contended that under section 1396, Rev. St. 1881, if for any cause the jury is not present at any term of the court, it is lawful, and made the duty of the court, to order the sheriff to summon a jury from the by-standers, which shall constitue the regular panel for the term; and the jury consists of 12 jurors; and that, if any juror is not present, it is made the duty of the court, under said section, to order the panel filled from the by-standers, and when so filled it shall constitute the regular panel; and that such was the fact at this term of the court; and Kyte was placed on the jury, and constituted one of the regular panel. We do not think the record presents the question as contended by counsel for appellant. If the court has the power as contended for, it is necessary for the court to make an order, or at least direct that the sheriff fill the panel from the by-standers; and the record does not show that any such order was made, or direction given, by the court, and executed by the sheriff. In this case it is simply shown, by the examination of the juror, that he was placed upon the jury by the sheriff as one of the regular panel. It does not show that it was done by order or the direction of the court, and he could not at least constitute one of the regular panel of jurors except by the order or direction of the court, so that the question as presented shows the juror Kyte to be nothing more than a talesman. The court having sustained the challenge, it will be presumed that the challenged juror was not a part of the regular panel, and the challenge was properly sustained. It does not appear that the appellant sustained any injury by the rulings of the court in sustaining the challenges to jurors; and the challenges were evidently sustained in the effort to get a fair jury. Carpenter v. Dame, 10 Ind. 125;Heaston v. Railroad Co., 16 Ind. 275, 279.

The next question presented is upon the admissibility of evidence, and it is contended by counsel for appellee that the evidence is not in the record, and therefore no question can be considered relating to the evidence; but in this counsel are in error. The evidence is incorporated into a bill of exceptions, and the record shows that time was given for the filing of such bill of exceptions, and that it was filed within the time allowed, and is properly certified as required by section 1410, Rev. St. 1881. Counsel assign as error various rulings of the court in the admission of evidence. The first complained of is question 10 in the original examination of Scott England, husband of the appellee, who had testified as to having learned of his wife's injury, and going to her assistance, taking off her shoe, and the doctor's setting her foot; and was then asked, “Do you know what was the matter with it?” to which question there was an objection. The grounds of the objection are not stated. The objection was overruled, and exceptions, and the witness answered, “I think it was broken.” There was no error in this ruling, even if the grounds of the objection had been stated. The witness was then asked if anything was done to the foot after it was first set, and he answered that it was broken and reset; and as to what position her foot was in before it was rebroken, and he described it. He was then asked whether the hole in the sidewalk was repaired, and he answered that it was; also whether the ankle was rebroken more than once, and he answered, “Only once;” and he was then asked what was done, if anything, towards straightening the limb, and how many times, and he answered, “Four or five times.” He was also asked whether his wife suffered during the time, and he answered, She did.” It was alleged in the complaint that in the treatment of said fractured limb it became necessary twice to break and reset her ankle; and it was contended by the plaintiff that the tendons drew her foot out of place, and made it crooked, and turned it awry, and with skillful treatment it could not be retained in its normal shape and position; and the evidence as to the condition of the limb and breaking and re-setting the same was proper. It is not contended but that the appellee exercised reasonable care and skill in the selection of physicians and surgeons to treat her. Railroad Co. v. Buck, 96 Ind. 346; 2 Thomp. Neg. p. 1091, § 7; Rice v. City of Des Moines, 40 Iowa, 638. It was proper, also, to show that the defect in the sidewalk was afterwards repaired. The appellee was entitled to compensation for the pain and suffering endured, and it was proper to...

To continue reading

Request your trial
21 cases
  • Ortho Pharmaceutical Corp. v. Chapman, 1-877
    • United States
    • Court of Appeals of Indiana
    • March 29, 1979
    ...... Gilbert v. Stone City Const. Co., (1976) Ind.App., 357 N.E.2d 738, 745. See also McEwen v. Ortho Pharmaceutical Corp., ... Goshen v. England (1889), 119 Ind. 368, 21 N.E. 977. Such evidence is generally inadmissible, even though ......
  • City of Indianapolis v. Swanson, 2-1179A336
    • United States
    • Court of Appeals of Indiana
    • June 29, 1982
    ......642, 52 N.E. 399; Board of Commissioners of Wabash County v. Pearson, (1891) 129 Ind. 456, 28 N.E. 1120; City of Goshen v. England, (1889) 119 Ind. 368, 21 N.E. 977; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App. 217, 279 N.E.2d 266. .         However, ......
  • Viou v. Brooks-Scanlon Lumber Co.
    • United States
    • Supreme Court of Minnesota (US)
    • July 27, 1906
    ......Plummer v. City, 79 Mo. App. 439; Citizens v. Hobbs, 15 Ind. App. 610, 43 N. E. 479; City v. England, 119 Ind. 368, ......
  • Viou v. Brooks-Scanlon Lumber Company
    • United States
    • Supreme Court of Minnesota (US)
    • July 27, 1906
    ...... of aggravation due to malpractice in reduction of damages. Plummer v. City, 79 Mo.App. 439; Citizens v. Hobbs, 15 Ind.App. 610, 43 N.E. 479; City v. England, 119 Ind. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT