City of Huntingburgh v. First

• Decision Date: 13 February 1896
• Docket Number: 1,870
• Citation: 43 N.E. 17,15 Ind.App. 552
• Parties: CITY OF HUNTINGBURGH v. FIRST
• Court: Indiana Appellate Court

43 N.E. 17

15 Ind.App. 552

CITY OF HUNTINGBURGH v. FIRST

No. 1,870

Court of Appeals of Indiana

February 13, 1896

From the Dubois Circuit Court.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

W. A Traylor and W. S. Hunter, for appellant.

W. E Cox and L. H. Fisher, for appellee.

ROSS J. LOTZ, J., dissents. GAVIN, C. J., concurs in result. REINHARD, J. absent. DAVIS, J., concurs.

OPINION

ROSS, J.

The appellee sued and recovered judgment against the appellant, for personal injuries received by her while passing over a sidewalk in said city, which she alleges was unsafe and defective. The complaint is in three paragraphs, in substance alike, to each of which the appellant filed a demurrer. which was overruled and exceptions saved.

The demurrer was addressed separately to each paragraph of the complaint, hence was several in its character, and the same as if three separate demurrers had been filed, one to each paragraph. The first specification of error assigned is joint, and questions a ruling on the demurrer to the complaint as an entirety.

The appellee alleges, in her complaint, that on the 20th day of October, 1893, she was walking over and upon a certain board or plank sidewalk on Washington street, in the city of Huntingburgh, on her way to church, in company with one Mary Lott; that her companion stepped upon one of the boards used in the construction of the walk, which had been permitted, on account of appellant's negligence, to become loose, when the board tipped and turned up at the opposite end thereof and immediately in front and within a foot of appellee, just as she was in the act of stepping forward, when she caught her foot under the board, stumbled and fell down, injuring her, etc.

It is contended, on the part of the appellant, that each paragraph of the complaint is insufficient, because it is not alleged therein, either that she was ignorant of the defective condition of the sidewalk, or that she was herself without fault contributing to her injury.

If one knows of a defect in a street or sidewalk greater care is required of him in its use than of one who has no knowledge thereof, unless the defect is open and obvious, so that the danger from its use in that condition is apparent to all persons using it. When a defect in a street or sidewalk is open and obvious, or is known to the traveler or pedestrian, he must, in passing along or over it, exercise reasonable care to avoid being injured by reason thereof.

It is sufficiently alleged, we think, in each paragraph of the complaint, that appellee did not know of the dangerous, defective, and unsafe condition of the walk; for in the first paragraph it is alleged "that while so walking side by side, along, over, and upon said sidewalk, and "not knowing or suspecting the said sidewalk," etc.; in the second paragraph, that "not suspecting or knowing the dangerous, unsafe, and treacherous condition of such sidewalk," etc., and in the third paragraph, that "without knowledge of its dangerous and unsafe condition, and with due and proper care," etc.

And each paragraph contains an allegation in substance that appellee was injured "without any fault or negligence on her part." A general allegation of freedom from contributory negligence is sufficient to withstand a demurrer, unless there are facts pleaded which show affirmatively that her own negligence contributed to her injury. The general allegations of freedom from fault in each paragraph of the complaint before us is sufficient, there being no facts pleaded which show affirmatively that appellee's own negligence in any manner contributed to her injury.

The evidence, most favorable to appellee, shows that the sidewalk in question had been out of repair for at least several months prior to the time she was injured; some of the boards of the walk were broken, others had holes in them, and still others were loose, while at places entire boards had been removed. Some of the city's officials knew, for a long time prior to appellee's injury, of the condition of the walk, although they deny that it was in the condition in which some of appellee's witnesses testified it was. Appellee herself testified that she passed over the walk frequently, and she knew the planks were all loose; that at 7 o'clock on the morning of October 20, 1893, the day she was injured, she was on her way to church, and, while passing over the walk, was looking for holes, but did not know that the planks would tip up; that her companion, Mary Lott, stepped upon a loose board, which tipped up and she caught her foot under the raised end and fell.

None of the witnesses testified that the walk was not safe for use, or that it was in any way dangerous; on the contrary, the only witness who spoke of its condition, as to whether it was dangerous or otherwise for use, was a witness for appellee, who says "It c could not be considered unsafe if one would pay attention."

It is true, that knowledge on the part of a pedestrian of a defect in a sidewalk is not in general conclusive evidence of negligence on his part in attempting to use it. He is not bound to forego the use of the walk simply because he knows that there are defects in it, unless the defects are such that to try to use the walk in that condition would probably result in injury. The defect may be very slight, or it may be serious, and yet the walk may be used with safety by those who exercise proper care, hence, while the pedestrian need not forego the use of the walk on account of a defect, he must, if he proceeds, use what is defined as ordinary care under the circumstances, to avoid being injured; that is to say, the care to be exercised by him must be commensurate with the danger to be encountered. The greater the danger the more vigilant and cautious must he be, for no man has a right to knowingly cast himself in the way of danger. It is his duty to avoid it, and if, by his failure to use at least ordinary care to avoid being injured, and injury befalls him, the fault is his own, and he alone must suffer therefor.

"A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right," says Lord Ellenborough in Butterfield v. Forrester, 11 East. 60.

And in the case of Town of Gosport v. Evans, 112 Ind. 133, Mitchell, J., says: "One who knows of a dangerous obstruction in a street or sidewalk, and yet attempts to pass it when, on account of darkness or other hindering causes, he cannot see so as to avoid it, takes the risk upon himself. For a much greater reason does he take the risk upon himself, if, seeing an obstruction, and knowing its dangerous character, he deliberately goes into or upon it, when he was under no compulsion to go, or might have avoided it by going around."

The most prudent persons take some risks, but in taking the risk they must exercise ordinary care to avoid being injured; otherwise, if injury befalls them, it will be attributed to their own want of care. What may be considered ordinary care, under the circumstances, depends upon the danger to be encountered. Ordinary care, however, requires that a person should not attempt to pass a place which he knows cannot be passed without incurring a hazard that ordinarily prudent persons would not incur. City of Richmond v. Mulholland, 116 Ind. 173, 18 N.E. 832; City of Bloomington v. Rogers, 9 Ind.App. 230, 36 N.E. 439.

In the case of Lake Shore, etc., R. W. Co. v. Pinchin, 112 Ind. 592, 13 N.E. 677 (595), the court, by Elliott, J., says: "But the fact that the danger is known, or might be known by the exercise of the natural faculties, will preclude a recovery where it is immediate and of such a character as to impose upon one who undertakes to pass the danger a hazard that a prudent man would not incur. A man has no right to cast himself upon a known danger where the act subjects him to great peril. If there is a risk, apparent or known, that will probably result in injury, he must not encounter it."

The appellee herself testified that she knew the planks were loose, and that she was looking for holes in the walk at the time she fell and was injured, but that she did not know that the loose boards would tip. And one of her witnesses testified that the walk was not unsafe if the person using it was attentive and careful.

The duty imposed by the law upon a city is that it shall keep its streets and sidewalks in a reasonably safe condition for travel, and when they are in that condition no liability accrues for injuries received by travelers or pedestrians. It is not required to keep its streets and sidewalks absolutely safe, for it is recognized that there will necessarily be slight inequalities and trifling defects and obstructions, and as against these it is the duty of the traveler or pedestrian to exercise care and see that they do not cause him to be injured. City of Indianapolis v. Cook, 99 Ind. 10; Buscher v. City of Lafayette, 8 Ind.App. 590.

If the walk was not unsafe to those paying attention, and using care while walking upon it, appellee's injury, so far as the evidence discloses, may have been the result of carelessness or inattention on her part. The fact that she says she did not know that the planks would tip is no sufficient excuse for not paying attention and using care, for she was bound to know that a loose board or plank in a walk is liable to be misplaced by one stepping upon it. It requires no special knowledge to know that a loose plank in a walk may be so misplaced. She was...