City of Indianapolis v. Evans

• Decision Date: 15 January 1940
• Docket Number: 27312.
• Citation: 24 N.E.2d 776,216 Ind. 555
• Parties: CITY OF INDIANAPOLIS v. EVANS.
• Court: Indiana Supreme Court

24 N.E.2d 776

216 Ind. 555

CITY OF INDIANAPOLIS v. EVANS.

No. 27312.

Supreme Court of Indiana

January 15, 1940

Appeal from Superior Court, Marion County; Joseph Williams judge.

Edward H. Knight, Corp. Counsel, Michael B Reddington, City Atty., and John M. Connor, Asst. City Atty. all of Indianapolis, for appellant.

E. O. Snethen, of Indianapolis, for appellee.

ROLL Judge.

This is an action to recover damages for personal injuries alleged to have been caused by reason of a collision of an automobile, in which the plaintiff, Anna Evans, was riding, with an iron post erected by appellant to guard a safety zone in the 500 block on East Washington Street in the City of Indianapolis.

The complaint was in one paragraph. Appellant filed a demurrer which was overruled, and the complaint was answered by a general denial. The jury returned a verdict for appellee, and judgment was entered accordingly.

The errors assigned on appeal are (1), the overruling of appellant's demurrer, and (2), the overruling of appellant's motion for a new trial.

The first proposition discussed in appellant's brief is that the complaint was insufficient because it did not allege that the negligence of the defendant, as stated in the complaint, was the sole, proximate cause of the injury, and therefore, the complaint was not sufficient.

The complaint described the street where the obstructions were placed, and also described the nature of the obstructions. She further alleges that no safe-guard, light, railing, notice or warning was placed on or near the iron post to warn or give notice to persons using the street of the existence of said iron post. The complaint then alleges: '* * *; that on the night of the 25th day of April, 1936, about 11:00 P. M., it then being dark, this plaintiff, while lawfully riding with her son-in-law who was driving and propelling his automobile over and on said street in a lawful manner where said obstruction was so placed and permitted, in a careful and prudent manner and without any fault or negligence on his part, by reason of said negligence of the defendants in leaving said obstruction, in said street as aforesaid, and without any notice or knowledge of the existence of said obstruction, on the part of the plaintiff or himself struck said obstruction and drove his automobile against and upon the same, by reason whereof said automobile was demolished and this plaintiff was thereby thrown violently from said automobile out upon the street and against the hard surface of the street and was greatly injured, in this, * * *' There follows a description of appellee's injuries.

It is not necessary that a complaint to recover damages for personal injuries contain a direct averment that the negligence alleged was the sole, proximate cause of the injury. It is sufficient if the complaint shows, by averments that the negligence alleged was the proximate cause of the injury. Evansville & C. R. Co. v. Hiatt, 17 Ind. 102. It is not, however, sufficient to show that there was negligence on the part of the defendant in some particular act or omission. It must be made to appear that plaintiff's injuries were the proximate result of the negligent acts alleged. The facts pleaded must show a causal connection between the wrongful act of the defendant and the injuries sustained by plaintiff. Jeffersonville, M. & I. R. Co. v. Dunlap, 29 Ind. 426; Cincinnati, H. & D. R. Co. v. Chester, 57 Ind. 297.

In the case of Island Coal Co. v. Clemmitt, 1898, 19 Ind.App. 21, 49 N.E. 38, 39, the court said: 'It is not necessary to characterize the conduct of the defendant by the use of the word 'negligence,' or words of the same derivation, if such facts be directly averred as certainly raise the legal presumption that the injury was the result of the defendant's actionable negligence. Weis v. City of Madison, 75 Ind. 241, 246 .' A defendant is not necessarily responsible for every injury which would not have occurred without some act or omission on his part; but if an act or omission constitute negligence, and an injury to one, free from fault, follows, of such a character that it might have been reasonably anticipated as a natural result of such negligence, and the particular injury would not have occurred without such negligence, then, the alleged negligence must be considered a proximate cause, even though other causes, whether wrongful or otherwise, also contributed to the injury. Pennsylvania Co. v. Fertig, 1904, 34 Ind.App. 459, 70 N.E. 834; South Bend Chilled Plow Co. v. Cissne, 35 Ind.App. 373, 74 N.E. 282. Appellee alleged in her complaint certain facts as to the erection and maintenance of the iron post in the traveled portion of the highway which showed negligence on the part of appellant, and then averred that: '* * * by reason of said negligence of defendant in leaving said obstruction in said street as aforesaid, and without notice or knowledge of the existence of said obstruction on the part of the plaintiff or himself, struck said obstruction and drove his automobile against and upon the same, by reason whereof said automobile was demolished and the plaintiff thereby thrown violently from said automobile and upon the street and was greatly injured. * * *'

These allegations, we think, show a causal connection between the negligence alleged and the injury, and show that the negligence complained of was the proximate cause of appellee's injuries. There was no error in overruling the demurrer to appellee's complaint on this ground.

Appellant in its demurrer to the complaint challenges the sufficiency of the notice alleged to have been served upon the city of Indianapolis under the provisions of Chapter 80, Acts 1935, p. 235. This act provides, among other things, that before certain actions can be brought, notice of the injury or loss shall be served upon the city, and that the notice shall set out therein the nature and extent of the injury to the person. The notice, herein alleged to have been served upon appellant, describes the nature and extent of the injury as follows: 'Nature of damages--Personal injuries to the body of the undersigned including broken bones and bruises.'

The sufficiency of this notice is presented by a demurrer to the complaint.

Several cases have been cited by appellant in which the sufficiency of the notice given in actions against municipalities have been questioned, which cases, at first sight, might seem to lend some support to appellant's contention. One of the cases cited and relied upon by appellant is Beverage v. Rockport, 1909, 106 Me. 223, 76 A. 677, 678. In that case the notice described the injuries thus: 'That said injury consisted of facial bruises and internal injuries, the extent of which cannot be ascertained at this time.'

The court in discussing the question quotes from Marcotte v. Lewiston, 94 Me. 233, 47 A. 137, as follows: '* * * the manifest purpose of this requirement of 14 days' notice 'is to afford opportunity to the town officers to examine the place, ascertain from persons having knowledge of the facts, while the recollection is fresh, all the attending circumstances, and determine as to the liability of the town, and prepare its defense if the town decides to defend.''

The court then commented as follows: 'In view of the limited time within which these notices must be served, and the fact that they are often necessarily prepared without the aid of a professional draftsman, their construction should not be 'strangled by technicalities nor distorted by captious criticism,' but full effect should be given to their natural and obvious meaning.'

In Low v. Windham, 75 Me. 113, it is said; 'Full and exact details of the personal injury are not required, and * * * the plaintiff is not precluded from recovering for injuries which are not known, and, therefore, cannot be specified at the date of the notice, but which manifest themselves later. The object of the notice in this respect is not to limit the plaintiff's right of recovery, but to give information to the town, by a general statement such as it is practicable for the plaintiff to make at the time, of the nature of the injuries for which he claims to recover damages.'

In the Beverage v. Rockport case the court comments on the case of Wadleigh v. Mt. Vernon, 75 Me. 79, as follows: 'It was alleged in the notice that the plaintiff was injured in his thigh and right lung, 'and otherwise injured by being violently shaken up and jarred in his fall to the ground'; and he was permitted to show a specific injury not mentioned in the notice, resulting from his being shaken up and jarred in his fall to the ground.'

After reviewing the above cases the court held the notice sufficient and sustained a recovery by the plaintiff. It is clear that, had the defendant demurred to the complaint in the Beverage v. Rockport case, supra, the complaint would have been held sufficient upon demurrer.

In the case of Lilly v. Town of Woodstock, 1890, 59 Conn. 219, 22 A. 40, 41, in the notice served upon the defendant city, the injuries were described as: '* * * the breaking and destruction of my carriage, and the bruising, wounding, and laming of may person.'

The defendant city demurred to the complaint and challenged the sufficiency of the notice. The court in discussing the question observed:

'A carriage so broken as to be destroyed presents the picture of a complete wreck, and describes the nature of the injury claimed to have befallen it with reasonable precision. The bruising, wounding, and laming of the person may have been as specific and accurate a notice of the nature of the injury as it was reasonably possible to give, and such may turn out upon trial to be the only practicable description. The notice bears no...