City of Indianapolis v. Keeley
| Decision Date | 19 December 1906 |
| Docket Number | 20,752 |
| Parties | City of Indianapolis v. Keeley |
| Court | Indiana Supreme Court |
From Johnson Circuit Court; W. J. Buckingham, Judge.
Action by Frank Keeley against the City of Indianapolis. From a judgment for plaintiff, defendant appeals. Appealed from the Appellate Court under subd. 3, § 1337j Burns 1901, Acts 1901, p. 565, § 10.
Reversed.
Henry Warrum, Edward B. Raub, Linn D. Hay, Gideon W. Blain Frederick E. Matson and Crate D. Bowen, for appellant.
Wymond J. Beckett and Elliott, Elliott & Littleton, for appellee.
Appellee brought this action for damages for personal injuries received on account of an alleged defect in one of the streets of appellant city. He recovered judgment in the trial court for $ 15,000, which was affirmed by the Appellate Court, and an appeal therefrom taken to this court.
The errors properly assigned challenge the decision of the trial court in overruling demurrers to each paragraph of complaint, appellant's motion to make the second paragraph of complaint more specific, and its motion for a new trial.
The first paragraph of appellee's complaint is substantially as follows: That on October 23, 1897, for many years prior thereto, and ever since, the appellant was, has been, and is a municipal corporation organized under the laws of this State; that at all times mentioned there was within its corporate limits a street, with sidewalks, known as Martindale avenue, situated in the northeastern portion of the city, and extending north and south, and intersecting at right angles streets running east and west known as Nineteenth, Twentieth and Twenty-first streets; "that beginning at a point just south of the south line of said Twenty-first street, and extending thence south, just along the east line of said Martindale avenue, there existed at the time before mentioned and for several years prior to that time a ditch, commonly known as the and for a distance of nearly a square from that point above stated said ditch extended along close to the east line of said Martindale avenue, so close as to infringe upon the line of the sidewalk of said avenue; that said ditch had steep banks, and it was on an average about twelve feet deep; that at a point south of said Twenty-first street the banks and bottom of said ditch, for a long distance, were filled with rocks of all shapes and sizes, and this condition was maintained at all times mentioned; that by reason of the fact that said ditch extended close to the east line of said Martindale avenue, as described, it was a menace to travelers along the east sidewalk of said Martindale avenue, and made the sidewalk along said avenue more than ordinarily dangerous to persons traveling along the east sidewalk of the avenue; that this condition of said avenue and said ditch had existed for at least two years prior to the time of the happening of the injuries to the appellee; that appellant knew, or by the exercise of reasonable diligence could have known, of the dangerous condition of the sidewalk on said avenue at the place in question, and above fully described, long before the appellee was injured; that, notwithstanding the knowledge on the part of the appellant of the dangerous condition of said sidewalk as described, it negligently failed to place any barriers along the east line of said sidewalk, but left travelers to the danger of falling off said sidewalk into said ditch, and such danger to travelers could have been obviated by the erection of such barriers; that on the night of October 23, 1897, appellee got off of a street car on Nineteenth street, and proceeded home along the east sidewalk of said Martindale avenue; that he did not know of the dangerous condition of said sidewalk; that he was walking in an ordinarily careful manner, and when he reached a point just south of Twenty-first street the wind suddenly lifted his hat from his head, and he instinctively grabbed in order to save his hat; that as he did so he slipped or stumbled and pitched into the ditch aforesaid, by reason of the fact that the appellant had negligently allowed the same to exist close to said sidewalk without barriers or protection of any kind; that as appellee fell, as aforesaid, he fell from the sidewalk immediately into said ditch, which at that point was full of rocks, and he fell to the bottom thereof into the water in said ditch; that for many hours he remained unconscious, as a result of said fall, and was not rescued from his dangerous position until the next morning; that for many months he remained sick from exposure, and in the fall he crushed his left hip so that for a long time he had to walk on crutches, and as a result of said injury his left limb has become shortened, his hip joint destroyed, so that now he is permanently lame, and is disabled from caring for himself or doing any manual labor; that appellee received said injuries without any fault or negligence on his part."
In support of their contention that appellant's demurrer to this paragraph of complaint should have been sustained, counsel argue that there is no allegation that Martindale avenue was a public street or thoroughfare, and that no duty to appellee on the part of appellant is shown. The averment was that within the limits of appellant city there existed at and before the time of the accident certain streets, among which was one known as Martindale avenue. It is thus plainly charged that Martindale avenue was within the city limits, and was a street; and that term necessarily implies its public character without an express averment that it was a public street. State v. Moriarty (1881), 74 Ind. 103; City of Columbus v. Strassner (1890), 124 Ind. 482, 25 N.E. 65; City of Indianapolis v. Higgins (1895), 141 Ind. 1, 40 N.E. 671.
The complaint charges that the injury resulted from a defect in the street within the jurisdiction of appellant, and therefore the law supplied the power and imposed the obligation upon it to maintain such street in reasonably safe condition for use by persons in the exercise of ordinary care. It necessarily follows that a duty to appellee is sufficiently shown.
It is further argued that there is no allegation that at the time of the accident it was dark and the ditch could not be seen, and that it appears from the complaint that appellee was guilty of contributory negligence. The allegation is made that appellee did not know of the dangerous condition of the sidewalk, and that the accident occurred at night and without any fault or negligence on his part. This is clearly sufficient to repel the demurrer upon the grounds urged. In the case of Town of Salem v. Goller (1881), 76 Ind. 291, this court, by Woods, J., speaking of the averments of the plaintiff in a similar complaint, said: A like holding was announced in the following cases of the same character: City of Ft. Wayne v. De Witt (1874), 47 Ind. 391; Murphy v. City of Indianapolis (1882), 83 Ind. 76; Town of Rushville v. Adams (1886), 107 Ind. 475, 8 N.E. 292; City of Elkhart v. Witman (1890), 122 Ind. 538, 23 N.E. 796; City of Franklin v. Harter (1891), 127 Ind. 446, 26 N.E. 882; City of Huntington v. McClurg (1899), 22 Ind.App. 261, 53 N.E. 658. No contributory negligence is manifest upon the face of this paragraph of complaint, and appellant's demurrer thereto was rightly overruled.
The second paragraph of complaint is substantially like the first, except that no specific averment is made that appellee had no knowledge of the condition of the street and sidewalk. The jury was required to answer seventy-three interrogatories, and by its answer to the sixteenth interrogatory expressly found that appellee did not know of the conditions, existence, and location of the ditch relative to the street and walk prior to the time of the accident. It is apparent that the verdict was grounded upon the first paragraph of complaint, and we are not required to determine the sufficiency of the second paragraph upon this appeal, or to review the court's ruling in refusing to require the same to be made more specific.
Appellant's motion for a new trial alleged that error was committed in refusing to require the jury to make specific answer to interrogatory twenty-six, in refusing to give certain instructions tendered, in giving each instruction given by the court upon his own motion, and in numerous rulings with regard to the admission and exclusion of evidence. The motion further alleged that the damages are excessive, and that the verdict is not sustained by sufficient evidence, and is contrary to law.
Interrogatory twenty-six and the answer thereto are as follows: We have already seen that the jury found appellee to be without any previous knowledge of the condition of the street and walk to which his injury was attributed, and with this fact established it is manifest that the doctrine of choice of ways was not applicable, and that he might have passed in safety some other way was immaterial, as it could not be claimed that, in the absence of knowledge of the defect, he voluntarily encountered the danger which produced his...
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