City of Huntington v. McClurg

• Court: Indiana Appellate Court
• Writing for the Court: BLACK, C. J.
• Citation: City of Huntington v. McClurg, 22 Ind. App. 261, 53 N. E. 658 (Ind. App. 1899)
• Decision Date: 26 April 1899
• Docket Number: 2,811
• Parties: CITY OF HUNTINGTON v. MCCLURG

53 N.E. 658

22 Ind.App. 261

CITY OF HUNTINGTON v. MCCLURG

No. 2,811

Court of Appeals of Indiana

April 26, 1899

From the Huntington Circuit Court.

Affirmed.

France & Dungan and Hart & Hart, for appellant.

Whitelock & Cook, for appellee.

OPINION

BLACK, C. J.

The appellee, Rachel A. McClurg, brought her action against the appellant to recover damages for a personal injury suffered by the appellee from falling upon a defective sidewalk.

The overruling of a motion to make the complaint more specific is assigned as error. After the motion was overruled, an amended complaint was filed, and thereafter no motion to make the complaint more specific was filed. The amended complaint is the only complaint in the transcript of the record. The complaint which was before the trial court when the motion was overruled is not before us, and therefore this assignment of error is unavailing.

After the cause had been put at issue by the filing of an answer of general denial, the appellee, upon leave granted, filed an amended complaint, and it is stated in the record that the appellant objected to the amendment of the complaint, and that the court overruled the objection. The appellee at the same time filed a second paragraph of complaint, and it is stated in the record that the appellant objected, and that the court overruled the objection. The appellant has assigned here that the court erred in allowing the appellee to amend her complaint; also, that it erred in allowing her to file a second paragraph of complaint. It does not appear that any grounds of objection as to the second paragraph were stated to the court. No application was made for postponement of the trial, which commenced three days later, and no question concerning need of delay to prepare for trial is involved in these specifications of the assignment of error. It is plain that we can not assume that the trial court abused its very broad discretion in permitting the amendment of the complaint, in what respect we do not know; and, if we are to regard the objection made in connection with the second paragraph, as directed to the granting of permission to file it, we have no means of determining that any right of the appellant was injuriously affected by such action of the court.

The appellant's demurrer to the amended complaint and the second paragraph of complaint, jointly, for want of sufficient facts, was overruled. No question is made in argument as to the negligence of the city, but it is claimed that the complaint shows the appellee to have been chargeable with contributory negligence. As shown by the complaint, the appellee was walking along a board sidewalk at the side of a street adjacent to the public square in the city of Huntington. In the second paragraph, which the appellant has chosen for discussion, the defective condition of the sidewalk, which it was alleged was used and traveled by the public generally, was described as follows: "That said sidewalk had been constructed by laying down wooden stringers lengthwise on the ground, and then nailing the boards thereon; that for more than six months before the 11th day of October, 1896, said stringers had become rotten and decayed and at places had entirely rotted away, and there were holes in the ground under said boards, leaving nothing to hold said boards; that the nails which had fastened said boards to said stringers were broken off pulled out, and gone, leaving nothing on which the boards might rest, and nothing to hold them down; and that said boards were loose and warped up at the ends to such an extent that a person in stepping on the same would jostle them from their place, and to such an extent that if two persons were passing over said walk and walking together, or the one just ahead of the other, said boards would fly up at one end and trip the other, and cause him to fall," etc. It was also alleged "that the plaintiff resided about ten miles out in the country from said city, and had never passed over said sidewalk before the date as aforesaid, and that she had no notice or knowledge of the condition of said walk, and did not know that said stringers or sills were rotten and partly gone, and that said boards were loose, and that there were holes in the ground under them, and that they would fly up as aforesaid; and she further says that on said 11th day of October, 1896, she was slowly, and with due care, walking on and over said sidewalk with another lady, who was a step in advance, when, without any fault or negligence on her part, and by reason of the rotten, loose, broken, and unsafe condition of said stringers, nails, and boards, she was tripped and struck by one of said boards flying up at one end when the lady stepped on the other, and the plaintiff was thrown down," etc.

It is argued on behalf of the appellant that, notwithstanding the allegations of the want of knowledge on the part of the appellee and of due care and freedom from fault or negligence, she must be held to have been negligent, because the sidewalk was described to be in a condition such that she, in the exercise of her natural faculties, could have seen its dangerous condition, and must be regarded as chargeable with knowledge thereof, and that, therefore, it affirmatively appears that she was guilty of contributory negligence. We are unable to accede to this claim. The defects described were not such that it can be said that they were necessarily obvious to a person walking for the first time along the sidewalk, and that danger of the kind which befell her ought to have been apprehended by her. She had a right to assume that the sidewalk was safe except so far as she knew, or by the exercise of ordinary care could discover, that it was dangerous. While the defects described were such as might easily have been discovered by one engaged in an inspection on behalf of the city, they were not, as described, necessarily so dangerous in appearance that a stranger visiting the city, and using its thoroughfares, was bound to forego passage along the sidewalk used and traveled by the public generally. Unless she was bound not to walk at all upon this sidewalk, it can not be said that she was negligent, in the face of her allegations of care and freedom from fault or negligence. As a matter of pleading, the appellee was sufficiently shown to be free from contributory fault. See City of Elkhart v. Witman, 122 Ind. 538, 23 N.E. 796; City of Columbus v. Strassner, 124 Ind. 482, 25 N.E. 65; Town of Nappanee v. Ruckman, 7 Ind.App. 361, 34 N.E. 609; City of Huntingburgh v. First, 15 Ind.App. 552, 43 N.E. 17.

There was a general verdict for the appellee, her damages being assessed at $ 500. The jury returned answers to interrogatories submitted by the parties. The appellant's motion for judgment on the interrogatories and answers thereto, notwithstanding the general verdict, was overruled. The appellant contends, in substance, that the special findings of the jury show that the appellee could have seen that the sidewalk was in bad condition, if she had looked; that it was in such a bad state that, walking upon it in daylight, she must have observed its dangerous condition, if she had given due attention; and that, in effect, the special findings indicate that she was paying no attention, and therefore was guilty of contributory negligence. By the general verdict, the jury found upon all material facts in favor of the appellee. There was included therein the finding of the jury that the appellee was not chargeable with contributory negligence. In deciding a motion for judgment upon special findings notwithstanding the general verdict, it is the duty of the court to indulge every reasonable intendment in support of the general verdict, and none in favor of the answers to interrogatories, and if the special findings, taken together, be not so clearly contrary to the general verdict as to be irreconcilable with it, the motion must be overruled. If the general verdict and the answers to interrogatories may both be true under supposable evidence within the issues, there is not such antagonism as to warrant the sustaining of the motion. And special findings which are inconsistent with other special findings can not override the general verdict. Lockwood v. Rose, 125 Ind. 588, 25 N.E. 710; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N.E. 593; Gates v. Scott, 123 Ind. 459, 24 N.E. 257; Heltonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N.E. 529; Evansville, etc., R. Co. v. Gilmore, 1 Ind.App. 468, 27 N.E. 992; Gaar, Scott & Co. v. Rose, 3 Ind.App. 269, 29 N.E. 616; Fitzmaurice v. Puterbaugh, 17 Ind.App. 318, 45 N.E. 524; Sponhaur v. Malloy, 21 Ind.App. 287, 52 N.E. 245.

While the answers to interrogatories showed the sidewalk to have been in a dangerous condition, and stated its defects, they showed that the appellee was fifty-seven years old, resided about ten miles from the city, and had never before passed over the sidewalk; that prior to her injury she did not...