City of Indianapolis v. Uland

• Decision Date: 05 November 1937
• Docket Number: 26923.
• Citation: 10 N.E.2d 907,212 Ind. 616
• Parties: CITY OF INDIANAPOLIS v. ULAND.
• Court: Indiana Supreme Court

10 N.E.2d 907

212 Ind. 616

CITY OF INDIANAPOLIS v. ULAND.

No. 26923.

Supreme Court of Indiana

November 5, 1937

Appeal from Hendricks Circuit Court; A. J. Stevenson, Judge.

Michael B. Reddington and Floyd J. Mattice, both of Indianapolis Edgar M. Blessing, of Danville, and James E. Deery, of Indianapolis, for appellant.

William H. Faust and Irene Faust, both of Indianapolis, and Otis E Gulley, of Danville, for appellee.

TREMAIN Judge.

This cause was transferred to the Supreme Court by the Appellate Court October 13, 1937, pursuant to section 4-209, Burns' Ind.St. 1933; section 1364, Baldwin's Ind. St. 1934.

The appellee filed her complaint against the city of Indianapolis, and David and Mary Rathfon, to recover damages on account of injuries sustained from falling upon an alleged defective sidewalk. It is alleged that the individual defendants owned a lot abutting on Orange street in the city of Indianapolis; that on the 13th day of February, 1933, and for a long time prior thereto, a dwelling was located on said lot; that a cement sidewalk extended along and in front of the lot; that the lot was terraced back from the sidewalk to the height of 2 feet; that for many years prior thereto water from the roof of the dwelling had been collected in a downspout, which emptied into an underground drain, which carried the water to the sidewalk in such way as to form a pool, in the language of the complaint 'making said sidewalk slick and dangerous to walk upon; which pool of water in freezing and thawing weather, formed a sheet of ice across said sidewalk to wit: two feet wide, which in turn was concealed by the water pouring from said drain to a depth of to wit: two inches, which concealed said layer of ice, thus making a dangerous obstruction to the use of said side walk at that point.'

It is alleged that said condition was in existence on, and several days prior to, the 13th day of February, 1933; that on said date the plaintiff was walking on said sidewalk, 'when she slipped upon said ice,' and by reason thereof fell and fractured her ankle. She further alleged that on the 5th day of April, 1933, she served a written notice upon the city of Indianapolis of the time, place, and cause of her injuries, together with a description thereof, a copy of which notice was made part of the complaint and marked 'Exhibit A.'

The notice recited the facts by the use of the following language: '* * * That said water was poured upon said sidewalk in such a way as to form a pool thereon, which in freezing and thawing weather, formed a sheet of ice across said side-walk to wit: two feet in width, thus making a dangerous obstruction to the use of said side-walk at that point.' That the plaintiff was passing along the sidewalk between the hours of 4 and 5 o'clock p. m., 'when she slipped upon said ice which at the time was hidden by water,' and sustained injuries.

To this complaint the appellant, city of Indianapolis, filed its separate demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The memorandum to the demurrer points out that the notice embodied in the complaint was not served upon the city within 30 days from the time the injury was sustained; that the statute requires a notice to be given within 30 days, when the defect complained of consists of snow and ice; that it is necessary to allege and prove service of such written notice as a condition precedent to the suit. The court overruled appellant's demurrer. This ruling is one of the grounds assigned for reversal of the cause.

At the time this action was filed, section 11230, Burns' Ann.St.1926, since amended, was in force. It provided that no action for damages for injuries to the person, resulting from any defect in the condition of any street, shall be maintained against a city unless written notice, containing a brief description of the time, place, cause, and nature of such injury, shall be given within 60 days thereafter. The statute further provided, 'If such defect consists of ice or snow or both, within thirty days thereafter,' a notice in writing shall be given to the city.

It is disclosed by the complaint that the notice was given 51 days after the injury was sustained. The appellant contends that such notice should have been given within 30 days. The appellee says that she had 60 days within which to give the notice. The appellee's position, as stated in her brief, is that her 'complaint is not brought for failure of appellant to remove snow, sleet, and ice accumulated in a natural way, but for failure of the appellant to prevent or abate a nuisance, caused by the fact that water was collected, confined in an artificial channel, and by means of a projecting tile conductor cast in a body upon the sidewalk.' On the other hand, the appellant contends that it is apparent from the allegations of the complaint that it is drawn upon the theory that the city negligently permitted ice to accumulate upon the sidewalk, which caused the appellee to fall and thereby to sustain injuries.

The complaint is in a single paragraph. The prayer is: 'That by reason of the premises this plaintiff has been damaged in the sum of ten thousand dollars ($10,000.00),' wherefore, she demands judgment for that amount.

There is no allegation or prayer that a nuisance be abated. It seems clear that the cause of action pleaded was one for damages only, based upon the negligence of the city in permitting a sheet of ice to be formed across the sidewalk. If all the allegations concerning the ice should be eliminated from the complaint, it would not state a cause of action. It is not alleged that the drain extended onto the sidewalk, nor that the appellee stumbled or fell over the tile conductor or other defect or obstruction in the street. No defects in the sidewalk of any nature or kind are described in the complaint, except the defect caused by ice. In other words, the complaint does not give a description of the sidewalk or any part thereof indicating a defective condition; no rough or irregular parts of the sidewalk are described. The nearest the complaint approaches an indication that there might be a depression in the sidewalk is the statement that water formed a pool thereon. What caused the water to stand in a pool is unknown from the allegations of the complaint.

The appellee does affirmatively state in her complaint that she 'slipped upon said ice.' It is reasonable, therefore to conclude that the ice was the defect which caused her injury. Evidently she regarded the ice as the proximate cause of the injury. According to the allegations of the complaint, the downspout and the underground drain had been in existence for many years upon the property of the defendants, David and May Rathfon. (The cause of action was dismissed as to these defendants at the time of the trial.) The...