City of Indianapolis v. Ray

• Decision Date: 07 March 1912
• Docket Number: No. 7,517.,7,517.
• Citation: 52 Ind.App. 388,97 N.E. 795
• Parties: CITY OF INDIANAPOLIS v. RAY.
• Court: Indiana Appellate Court

52 Ind.App. 388

97 N.E. 795

CITY OF INDIANAPOLIS

v.RAY.¹

No. 7,517.

Appellate Court of Indiana, Division No. 2.

March 7, 1912.

Appeal from Superior Court, Marion County; C. E. Weir, Judge.

Action by Sarah Ray against the City of Indianapolis. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Frederick E. Matson, Crate D. Bowen, James D. Pierce, Joseph B. Kealing, Merle N. A. Walker, and Newton J. McGuire, for appellant. Gay R. Estabrook, for appellee.

IBACH, P. J.

This was a suit brought by Sarah Ray, appellee, against the city of Indianapolis, appellant, to recover damages for injuries received by falling through a defective sidewalk which, it is alleged, appellant had allowed to remain for a number of years upon Georgia street, one of the principal streets of said city. The complaint as originally filed was in three paragraphs. A demurrer was sustained as to the first, and overruled as to the second and third. The cause was put at issue by answer in general denial. There was trial by jury and verdict for plaintiff. The court overruled a motion for new trial, and rendered judgment on the verdict. The errors assigned and argued are the overruling of the demurrer to the third paragraph of complaint and overruling the motion for new trial.

[1] The third paragraph, instead of charging that the city had actual knowledge of the defect in the walk complained of, as was charged in the second paragraph, avers that the foundation upon which such walk had been originally constructed was washed out at that place about one year before plaintiff was injured; that near by said place, and about two years previous to the time of her injury, a part of the walk had given way on account of the support thereof being washed out, and the same was not repaired for some months thereafter; that such defects could be readily seen during all that time; that the sidewalk where plaintiff fell had been unsafe and insecure for a number of years and dangerous by reason of the foundation or support under the same having been washed out; and that the defendant, by the exercise of proper care and diligence, could have known of such unsafe condition, and could have made the same safe long before. It is also charged that for a period of two years before the plaintiff's injury employés of the city inspected the basement of the building adjacent to such sidewalk, and if the inspection had been made with proper care the hole under the sidewalk at the point where the section of the cement walk broke under plaintiff's weight, causing her to fall, and injuring her, could have been discovered and the defect remedied. It is further charged that a certain drain had been constructed some years before leading from the building on the Georgia street side, and before the same was completed a large amount of the foundation of the sidewalk had been washed out by a heavy rain, and had not been properly replaced, and that by the exercise of proper care and diligence after the drain was completed the city could have discovered the unsafe condition of the walk, and plaintiff had no knowledge of its defective condition, and by the exercise of ordinary and reasonable care she could not have discovered it.

The defective condition of the sidewalk is made clear and specific; the absence of knowledge on appellee's part of any defect in the sidewalk is also made to appear. Facts are also clearly pleaded tending to show constructive knowledge of the defect which caused plaintiff's injury for a sufficient length of time before the accident to have repaired it and to have made it safe, and nothing is specially pleaded tending to show that any act on appellee's part in passing over the walk contributed to her injury. On the contrary, all the facts averred tend to show a violation of a duty toward appellee imposed by law upon appellant, and for the violation of which an injury resulted to her. We therefore think the third paragraph is sufficient to withstand the demurrer.

[2] Appellant insists that the verdict is not sustained by sufficient evidence. It is first contended that it is not shown that the city had any notice, either actual or constructive, of the defective condition of the sidewalk in question. It is the duty of a municipality to keep its sidewalks in a reasonably safe condition for the use of the public, and it is liable for all defects therein of which it had actual knowledge, or which were so obvious, or had existed for such a length of time prior to the accident, as to apprise the officers of such municipality, if they were diligent in the performance of their duty. This rule has been approved by our courts in the following or similar language: “When the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as for those caused by defects occasioned by the wrongful acts of others; but as in such case the basis of the action is negligence notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability. For in such cases the corporation, in the absence of a controlling enactment, is responsible only for a reasonable diligence to repair the defect or prevent accidents after the unsafe condition of the street is known or ought to have been known to it or to its officers having authority to act respecting it.” Turner v. City of Indianapolis, 96 Ind. 51;Town of Rosedale v. Ferguson, 3 Ind. App. 596, 30 N. E. 156; Dillon on Municipal Corporations, §§ 789, 790, pp. 753-761.

[3] It must be conceded that it...