City of Indianapolis v. Schoenig
| Citation | 95 N.E. 324,48 Ind.App. 76 |
| Decision Date | 09 June 1911 |
| Docket Number | 7,270 |
| Parties | CITY OF INDIANAPOLIS v. SCHOENIG |
| Court | Indiana Appellate Court |
From Morgan Circuit Court; Joseph W. Williams, Judge.
Action by Joseph Schoenig against the City of Indianapolis. From a judgment for plaintiff, defendant appeals.
Affirmed.
Frederick E. Matson, James D. Pierce and Crate D. Bowen, for appellant.
Charles B. Clarke, Walter C. Clarke, Clement M. Holderman and Renner & McNutt, for appellee.
This is an action brought by appellee for injuries received by him while traveling on one of the streets of appellant city. A complaint was filed in the Marion Circuit Court, to which appellant demurred for want of facts. This demurrer being overruled, appellant answered in general denial. A change of venue was then taken to the Morgan Circuit Court, where the cause was tried before a jury, resulting in a verdict for appellee in the sum of $ 1,800, on which judgment was afterwards rendered.
From this judgment an appeal is taken, and the following errors assigned for reversal: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling the demurrer to the complaint; (3) the court erred in overruling the motion for a new trial.
No objection to the complaint is pointed out by appellant in his brief, and no authorities are cited bearing upon this proposition. The brief contains no argument as to the sufficiency of the complaint, the only question raised with reference to it, being that the evidence in the record does not sustain it on the theory upon which it is drawn. This question cannot be considered as affecting the complaint, but can be properly considered only in passing upon the motion for a new trial. Errors assigned but not discussed in the brief of the party assigning them will be treated as waived. Stametz v. Mitchenor (1906), 165 Ind. 672, 75 N.E. 579; Hoover v Weesner (1897), 147 Ind. 510, 45 N.E. 650; Starkey v. Starkey (1906), 166 Ind. 140, 76 N.E. 876; City of Fort Wayne v. Patterson (1900), 25 Ind.App. 547, 58 N.E. 747.
Several causes are assigned for a new trial, but the only ones discussed are the following: (1) The verdict is not sustained by sufficient evidence. (2) The verdict is contrary to law. (3) The court erred in giving certain designated instructions of its own motion. (4) The court erred in giving certain designated instructions requested by appellee. (5) The court erred in refusing to give certain designated instructions requested by appellant.
The evidence tends to show that appellee received the injuries for which he sues by falling into a deep gutter on the east side of Fulton street, near the corner of Ohio street, in the city of Indianapolis, on the night of July 27, 1907. The first contention of appellant is that said gutter was necessary and proper for the purpose of draining the street and that the manner of its construction was not such as to constitute a dangerous defect in the street. Upon this question the evidence tends to show that Ohio street and Fulton street intersect at right angles; that Ohio street runs east and west, and is paved with brick, and that Fulton street is a gravel way; that the curb and pavement which constitute the improvement on Ohio street extend up into Fulton street for a distance of sixteen feet and two inches from the curb line of Ohio street, and that Fulton street is paved with brick for that distance north of said curb line; that there was a cement sidewalk five feet wide along the curb line on the north side of Ohio street east of Fulton street, and a sidewalk six feet wide along the east side of Fulton street next to the property line; that the cement curb which forms a part of the Ohio street improvement is constructed parallel with the north property line of said street, and distant therefrom sixteen feet and two inches, and that this curb turns the corner of Ohio and Fulton streets and extends north parallel with the east property line of Fulton street, and distant therefrom fourteen feet and eight inches to a point on a line with the north property line of Ohio street where the curb and also the brick pavement terminate. There is an oblong area eleven feet and four inches long from north to south and eight feet and four inches wide, located between the sidewalk and curb on Fulton street, and immediately north of the sidewalk on Ohio street. This area was about six inches above the paved street, and was filled with gravel flush with the top of the sidewalk and curb. Near the center of the north end of this area the old open gutter on the east side of Fulton street connected with a tile-drain ten inches in diameter, which was constructed under this area south to a sewer near the north curb line of Ohio street. The bottom of the tile at the north end of this area was about twenty-eight inches below the surface of the area described, and the gutter was so constructed at that point that the bottom of said gutter was on a level with the bottom of the ten-inch tile, and about twenty-eight inches below the surface of said area. Above the tile was placed a stone, which was level with the sidewalk and curb, and the gravel was filled in behind this stone, so as to leave an off-set or declivity of about twenty-eight inches at the north end of the described area. The gutter at that point was not covered, and there was no rail or guard to prevent a pedestrian from stepping off the north end of said area into said gutter, and being injured. In that part of the city, as shown by the evidence, some of the sidewalks were constructed along and adjoining the property line, while others were constructed along the curb line. The area described was of such a character that in the nighttime it might easily be mistaken for a sidewalk, and a person crossing Fulton street from the west, by deviating slightly to the north without leaving the paved portion of the street, and stepping upon this raised area near the north end thereof, would be exposed to the danger of being injured as a result of the unguarded defect at the north end of said area. Whether the condition of the street described was of such a character as to be dangerous to pedestrians using the streets and sidewalks, was a question of fact for the jury. Where the evidence in reference to the condition of a street is without conflict, and the condition shown is of such a character that different minds of equal intelligence and candor might honestly reach different conclusions upon the question as to whether the condition shown constituted a dangerous defect or condition, that question is one of fact for the jury. Heckman v. Evenson (1897), 7 N.D. 173, 73 N.W. 427; Gerald v. City of Boston (1871), 108 Mass. 580; Dowd v. Inhabitants of Chicopee (1874), 116 Mass. 93. The jury having found by its general verdict that the condition shown was such as to make the street unsafe for travel, this finding cannot be disturbed on appeal. The defendant city having created this condition should have taken such precautions as were reasonably necessary to make the street at that point ordinarily safe for travel; and a failure so to do is negligence, and renders the city liable. Higert v. City of Greencastle (1873), 43 Ind. 574; City of Delphi v. Lowery (1881), 74 Ind. 520; Jones v. Inhabitants of Waltham (1849), 4 Cush. 299. In the case of City of Vincennes v. Spees (1905), 35 Ind.App. 389, 74 N.E. 277, the language of the court was as follows:
The next contention of appellee is, that upon the undisputed facts, as disclosed by the evidence, appellee was guilty of contributory negligence. The evidence of appellee shows that he walked east on the sidewalk on the north side of Ohio street, and started across Fulton street toward the northeast corner of Fulton and Ohio streets, and that after he crossed the street-car track he walked in a northeasterly direction, and stepped upon the curb at the...
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