City of Huntington v. Bartrom
| Decision Date | 21 June 1911 |
| Docket Number | 7,130 |
| Citation | 95 N.E. 544,48 Ind.App. 117 |
| Parties | CITY OF HUNTINGTON v. BARTROM, BY NEXT FRIEND |
| Court | Indiana Appellate Court |
From Huntington Circuit Court; Samuel E. Cook, Judge.
Action by Paul E. Bartrom, by his next friend, against the City of Huntington. From a judgment for plaintiff, defendant appeals.
Reversed.
Emmett O. King, John Q. Cline and Claude Cline, for appellant.
Lesh & Lesh, for appellee.
Action for damages by Paul E. Bartrom, by his next friend, Jacob Bartrom, on account of injury alleged to have been sustained by said Paul E. Bartrom, by reason of his stumbling and falling over an alleged protruding stone in one of the sidewalks of said city.
The complaint was in one paragraph, the sufficiency of which is not questioned by this appeal. An answer in general denial was filed, and the cause was tried by a jury, which returned a general verdict for appellee in the sum of $ 250, with which answers to interrogatories were filed.
Upon the conclusion of appellee's evidence, appellant moved that a verdict be directed in its favor, but the motion was overruled. Appellant also filed a motion for judgment on the answers to interrogatories and for a new trial, each of which motions was by the court overruled. Exceptions were properly saved to each of said rulings of the court, and the questions presented by said rulings are now before this court by proper assignments of error.
The answers to interrogatories present the case in the light most favorable to appellant's contention. We quote enough of the interrogatories and the answers thereto, and the substance of others, necessary to a correct understanding of the question presented by the ruling on said motion for judgment thereon. They are as follows: Clark street is one of the public streets of the city of Huntington, and runs south from William street, through a thinly-settled portion of said city. On its east side there was a sidewalk four feet wide constructed of crushed stone, some of the small stones of which protruded above its general surface at the point where plaintiff was injured. Plaintiff was born October 18, 1899, and his injury complained of occurred October 12, 1906. For some time prior to receiving such injury, plaintiff had been attending school on said William street, during which time he passed over said sidewalk four times each day, and knew "there were some stones sticking up slightly above the general surface of said sidewalk." On said October 12, 1906, plaintiff had good eyesight, was enjoying fairly good health, was all right mentally, and when returning home from school about 4 o'clock p.m. of said day was running over said walk going south, and while so running he fell.
We now quote other interrogatories and answers:
"Q. If plaintiff fell upon or over a stone in said sidewalk, how high did said stone extend above the general surface of said sidewalk?
A. Three-fourths of an inch.
Q. What was the diameter, in inches, of said stone, where it protruded through said sidewalk?
A. Two and one-half inches.
Q. Was said stone rounded, and did it slope down from its highest part to the gravel in the general level of the walk?
A. Yes.
Q. Could plaintiff have seen the stone over which he is alleged to have fallen if he had used ordinary care?
A. Yes.
* * *
Q. What was the distance between the stone, over which plaintiff is alleged to have fallen, and the outer edge of said sidewalk?
A. Eighteen inches.
Q. What was the distance between said stone and the inner line of said walk next to the Balzer lot?
A. Thirty-two inches.
Q. Was there any obstruction in said walk on October 12, 1906, when plaintiff fell, between said stone and either edge of said walk, that would prevent plaintiff from passing around or to the side of this stone?
A. No.
Q. Could plaintiff have seen said stone at said time if he had looked, and stepped over it?
A. Yes."
Appellant insists that these answers to interrogatories show that Paul E. Bartrom, the injured person, who shall hereafter be referred to as appellee, was sui juris, and, under the law, guilty of negligence contributing to his injury. With this contention we cannot agree. The finding of the jury shows that the boy lacked a few days of being seven years old, and while it is true, as appellant urges, that the answers to interrogatories show that the protruding stone in the sidewalk over which appellee fell was one that could be seen and avoided as easily by a boy as by an adult, and that appellee in fact knew of the existence of said protruding stone, and by the exercise of ordinary care could have avoided it, yet we think the character of this obstruction was such that it would not be at all likely to appeal to a boy of the age of appellee, as being a danger to be watched and avoided when passing it on the sidewalk. In any event, the questions whether appellee was sui juris, and whether he contributed to his own injury, were both questions of fact for the jury, and by its general verdict the jury has settled this question against the contention of appellant, and we cannot say that upon this question there is irreconcilable conflict between such verdict and the answers of the jury to interrogatories. If the weakness of the general verdict rested alone upon this conflict, we should not be disposed to disturb it; but when we consider the conflict between the general verdict and the answers to interrogatories, upon the character of the obstruction over which appellee stumbled and fell, a more serious question arises.
Upon this question the jury found that the walk was made of crushed stone; that it passed through a sparsely settled portion of the city, and that the protruding stone therein, over which appellee fell, was two and a half inches in diameter, and extended above the general surface of said sidewalk three-fourths of an inch. If the answers showed no more than this, we think there would be serious doubt as to appellant's liability, but there is a further and controlling fact found by these answers, viz., that said protruding stone was rounded and sloped down from its highest part to the gravel in the general level of the walk.
In the absence of negligence on the part of a municipal corporation in failing to make or keep its sidewalks in a reasonably safe condition for travel, no action will lie against such corporation for injury sustained by a traveler upon such walks. City of Michigan City v. Boeckling (1890), 122 Ind. 39, 39-41, 23 N.E. 518; City of Indianapolis v. Cook (1884), 99 Ind. 10, 15; City of Franklin v. Harter (1891), 127 Ind. 446, 446-448, 26 N.E. 882.
A municipal corporation does not warrant nor insure the safety of its streets. The law requires of it only that it exercise ordinary care and skill in making its sidewalks, and keeping them in a reasonably safe condition for travel by...
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