City of Indianapolis v. Mitchell

• Decision Date: 15 November 1901
• Docket Number: 3,710
• Citation: 61 N.E. 947,27 Ind.App. 589
• Parties: CITY OF INDIANAPOLIS v. MITCHELL, BY HER NEXT FRIEND
• Court: Indiana Appellate Court

61 N.E. 947

27 Ind.App. 589

CITY OF INDIANAPOLIS v. MITCHELL, BY HER NEXT FRIEND

No. 3,710

Court of Appeals of Indiana

November 15, 1901

From Marion Superior Court; L. M. Harvey, Judge.

Action by Ida G. Mitchell, by her next friend, against the city of Indianapolis for personal injuries. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

J. W Kern and J. E. Bell, for appellant.

W. A Pickens, L. A. Cox and S.W. Kahn, for appellee.

OPINION

WILEY, P. J.

Action by appellee against appellant to recover damages sustained by an injury on account of an alleged defective and dangerous crossing. Complaint in one paragraph answer in denial, trial by jury, verdict and judgment for appellee. The verdict was for $ 7,000, but, pending a motion for a new trial, the court required appellee to elect whether she would remit $ 2,000 of the verdict, or suffer a new trial. She elected to, and did, remit the $ 2,000. Thereupon, the court overruled the motion for a new trial. The court overruled a demurrer to the complaint, and these two adverse rulings are assigned as error.

The complaint avers that the injury complained of occurred at the intersection of Highland place and Twelfth street, in the city of Indianapolis; that Highland place runs north and south, and Twelfth street, east and west; that the grade of Twelfth street, on September 7, 1895, and long prior thereto, was higher than the grade of Highland place; that on said date, and for a long time prior thereto, there were cement sidewalks on each side of Highland place, which sidewalks ended at the inside of the sidewalk line of Twelfth street; that there was no permanent crossing for foot passengers leading from said sidewalk on the east side of Highland place, across Twelfth street; that instead thereof there were two large planks of wood lying loosely on the ground, with one end of each resting upon the sidewalk, and the other end on the ground, toward the middle of Twelfth street; that said planks were used by travelers generally for a crossing; that appellant negligently failed to place permanent crossings over said Twelfth street, and negligently permitted said loose planks to remain there as indicated; that on August 1, 1895, some person, without appellee's knowledge or consent, took up said planks and raised the south ends thereof fourteen inches from the top of the ends down to the sidewalk, thus making a dangerous and unsafe approach from Twelfth street to said sidewalk; that appellant well knew of the condition of said crossing, on and prior to September 7, 1895, when appellee was injured, and permitted it to remain in said condition; that appellee did not often have occasion to use said crossing, but knew that the ends of said planks rested on the said sidewalk, making a step of about two inches before said change was made; that after said change was made, appellee had no occasion to use said crossing, and had no knowledge of said elevation, until she was injured; that on September 7, 1895, in the early morning, appellee was on her way to her work, and necessarily proceeded on foot over said planks to said sidewalk in the darkness, and arriving at the end thereof to step down from the ends of the planks to the sidewalk, and being unaware that said planks had been raised as aforesaid, she was, without any fault or negligence on her part, thrown violently to the ground and injured in her spine, internal organs, etc. That at the time of said injury she was exercising due care, and that said injury occurred without any fault or negligence on her part, but wholly from the fault or negligence of appellant. It is also averred that prior to said injury she was of robust health, able to work and earn a livelihood, but that her injuries, occasioned by stepping off of said planks, are permanent, and that she will never again be able to do any work, or earn her support.

It is first argued that the complaint is bad, because it shows that the appellee knew of the dangerous condition of the crossing, and under the rule declared in the case of Town of Gosport v. Evans, 112 Ind. 133, 2 Am. St. 164, 13 N.E. 256, and City of Indianapolis v. Cook, 99 Ind. 10, that one who knows of a dangerous obstruction in a street or sidewalk, and attempts to pass, when, on account of darkness or other hindering causes, he cannot see so as to avoid it, takes the risk upon himself, and must be held to be guilty of contributory negligence. This doctrine rests upon the principle that where there is danger and the peril is known, he who encounters it, voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence, and therefore does so at his own risk. True, if the complaint, on its face, shows that appellee was guilty of negligence contributing to her injury, it must fall before a demurrer, for one who relies upon the negligence of his adversary, as a basis for his cause of action, must himself be blameless. We do not, however, construe the complaint as showing affirmatively that appellee knew of the dangerous condition of the crossing. Her knowledge of its condition, prior to the date of her injury, was as it existed prior to August 1, 1895, when she alleges that it was changed. She shows that she had not had occasion to use it after it was changed, until the time she was injured, and that she did not know of its condition until she was injured. As she knew it, there was an off-set from the ends of the planks resting on the sidewalk of two inches, and as she encountered it, without any knowledge of its changed condition, she found an off-set of fourteen inches. She had no reason to anticipate this, as there was nothing to put her on her guard. She was traveling on a public street in a populous city, and had a right to use the crossing. She expected to find an off-set of two inches, and, so far as the complaint shows, was using ordinary care in passing over the crossing as she knew it; but, instead, she found one of fourteen inches, and injury resulted. The cases cited and relied on by appellant to support this contention are not in point, for in those cases the injured parties knew of the known dangers, and voluntarily and unnecessarily encountered them.

It is next urged that the complaint shows that the crossing was in good condition. It has been held that a street crossing of plank, raised from two to two and one-half inches in height above the level of the sidewalk, is a dangerous obstruction. Glantz v. City of South Bend, 106 Ind. 305, 6 N.E. 632. It is certainly much more dangerous if the plank be raised fourteen inches above the sidewalk.

Counsel next argue that the plank crossing, at the point of injury, was visible, and hence appellee might have avoided the injury by ordinary care.

We must determine this question from the pleading, and not from the evidence. The complaint avers that she received her injury in the early morning, and while she was passing over the crossing in the darkness. This precludes the supposition that the point of injury was visible. She knew the condition of the walk as it formerly existed, and had a right to assume that it had not been changed, and was not required to stop and see if it had been changed. If the complaint shows that she was using ordinary care in passing over the crossing as it formerly existed, and we think it does, it is sufficient against this objection. She was not required to exercise extraordinary vigilance, to avoid a danger she did not anticipate, and of which she had no knowledge.

We are not to judge of appellee's conduct on the morning she was injured by the standard of what the most prudent person would have done under like circumstances, but by the broader and more general standard of what the ordinarily prudent person would have done. The ordinarily prudent person does not, when passing over public highways, look at every point where he steps, neither is he required to do so. While a municipality is not an insurer of persons passing over and upon its streets, yet it is required to keep its streets and sidewalks in a reasonably safe condition, to the end that in their use the ordinarily prudent traveler may pass over them in safety. A person traveling upon a public street has a right to assume, in the absence of notice to the contrary, that it is in a reasonably safe condition. Stevens v. City of Logansport, 76 Ind. 498; Noblesville Gas, etc., Co. v. Loehr, 124 Ind. 79, 24 N.E. 579. The complaint, in our judgment, was sufficient to withstand the demurrer.

Passing to the motion for a new trial, we find that appellant states ten reasons why a new trial should have been granted. Counsel for appellant have not taken up the questions thus raised, in their order, or referred to them by their numbers, and it is somewhat difficult, for this reason, to follow them. Much of the argument, we take, might be classed as coming under the second and third reasons for a new trial, to wit, that the verdict is not sustained by sufficient evidence, and is contrary to law.

It is earnestly contended that when appellee was injured it was light enough for her to see the defect in the crossing, and that she did not see it shows that she was guilty of contributory negligence. Much stress is given to when twilight commenced, as shown by "The World Almanac". We cannot consider this argument, for the case, as made by appellee, depends upon the evidence. It was upon the evidence, under the instructions of the court, that the jury passed upon and determined whether or not appellee at the time she was injured, was using ordinary care and prudence, and whether she was free from fault contributing to her own injury. By their verdict the jury determined these questions in her favor, and if there is any evidence in support...