City of Goshen v. England

• Decision Date: 19 June 1889
• Docket Number: 13,780
• Citation: 21 N.E. 977,119 Ind. 368
• Parties: The City of Goshen v. England
• Court: Indiana Supreme Court

21 N.E. 977

119 Ind. 368

The City of Goshen v. England

No. 13,780

Supreme Court of Indiana

June 19, 1889

From the Elkhart Circuit Court.

Judgment affirmed, with costs.

I. A Simmons, H. D. Wilson and W. J. Davis, for appellant.

J. H Baker and J. H. Defrees, Jr., for appellee.

OPINION

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 five hundred dollars.

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 the 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 a street or sidewalk, the fact that a juror is a resident taxpayer of the city is a good cause for challenge of such juror.Town of Albion v. Hetrick,90 Ind. 545, 549 and 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 taxpayer 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 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, R. S. 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 a 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 that he had served as a juror on the trial of causes at the term of court up to the empaneling 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 questions 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, R. S. 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 bystanders, which shall constitute the regular panel for the term; and that the jury consists of twelve jurors, and if any juror is not present it is made the duty of the court, under said section, to order the panel filled from the bystanders, 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 bystanders, 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. Cincinnati, etc., R. R. 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, R. S. 1881.

Counsel assign as error various rulings of the court in the admission of evidence.The first complained of is question ten in the original examination of Scott England, husband of the appellee, who had testified as to having learned of his wife's injury, going to her assistance and taking off her shoe, and as to the doctor setting her foot; he 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, an exception taken, 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, toward 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 skilful 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 resetting 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.Terre Haute, etc., R. R. Co. v. Buck,96 Ind. 346;2 Thompson Negligence, 1091, section 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 prove that she suffered pain during the necessary treatment of the limb.2 Thompson Neg., 1258;Pittsburgh, etc., R. W. Co. v. Sponier,85 Ind. 165.

The appellee, while testifying as a witness, was asked "What is the fact as to your foot being reset at different times?" which was objected to on the ground that when the fractured limb was once adjusted, or the dislocated joint once reduced, the appellee had no right to show that it was reset, or reduced a second time; the objection was overruled and the witness answered that "the tendons would draw it crooked, and they would straighten it again, and then I would have severe pain in it and it would draw crooked again."This was proper evidence.It is proper, in a case of this character, to show the manner in which the limb was treated, and that it was proper treatment under the circumstances.The...