City of Indianapolis v. Baker

• Decision Date: 20 November 1919
• Docket Number: No. 10126.,10126.
• Citation: 125 N.E. 52,72 Ind.App. 323
• Parties: CITY OF INDIANAPOLIS v. BAKER.
• Court: Indiana Appellate Court

72 Ind.App. 323

125 N.E. 52

CITY OF INDIANAPOLIS

v.BAKER.

No. 10126.

Appellate Court of Indiana, Division No. 2.

Nov. 20, 1919.

Appeal from Superior Court, Marion County; Theophilus J. Moll, Judge.

Action by Richard Baker, by next friend, against the City of Indianapolis. From judgment for plaintiff, defendant appeals. Reversed, with instructions to grant new trial.

Wm. A. Pickens, Paul G. Davis, Edward W. Hohlt, Walter Myers, and Robert A. Adams, all of Indianapolis, for appellant.

Clyde E. Baker and Wm. E. Reilley, both of Indianapolis, for appellee.

NICHOLS, P. J.

This action was in the superior court of Marion county, by the appellee, by next friend, against appellant, for damages on account of an injury alleged to have been sustained by appellee on a public playground of appellant. The facts as alleged in the second amended complaint are substantially as follows:

Appellee at the time of the commencement of this action was a boy 15 years of age. Appellant maintained within the corporate limits of the city a public playground, where children were invited to play. Appellant maintained within said playground a baseball ground or diamond, where the children of the neighborhood played baseball. On June 25, 1915, appellee, with others, was playing baseball on said diamond, when appellee ran from third base to home base. Said home base consisted of a block or curb, and was round and convex in form on the bottom; said block or curb was unsecured, unstable, and dangerous, and appellant knew of such defective and dangerous condition, or by the exercise of reasonable care should have known. Said appellant placed said block at said home base, and negligently permitted it to remain there. Appellee, while exercising care and diligence, stepped on said block, and, owing to the negligent manner in which said block was placed and maintained, appellee was injured when he stepped upon it, by being thrown violently to the ground, resulting in a sprained ankle and other injuries. There was a demand for $5,000 damages.

To this complaint a demurrer was filed for want of facts, which was overruled. After issues, the cause was submitted to a jury for trial. At the close of appellee's evidence, appellant filed a motion that the court direct a verdict for appellant, and a like motion at the close of all of the evidence, both of which motions were overruled. There was a verdict for appellee in the sum of $250. After motion for a new trial, which was overruled, this appeal. Each of the foregoing rulings of the court is assigned as error.

[1] Appellant contends that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it shows that appellee sustained his injuries while playing upon a playground which was established and being operated by appellant, and that in performing such a public service it was discharging a governmental power, in pursuance of a duty imposed by law for the general welfare of the inhabitants, and that in the performance of such duties it is not liable for the misconduct or negligence of its officers or agents in the discharge of such official duties, nor for the unsafe condition of the grounds used therefor. The duties of a municipal corporation are classified into those of governmental and those of ministerial; the first consisting of such as are the exercise of its sovereign powers, and which are in their nature judicial or legislative, depending on the judgment and discretion...