City of Jasonville v. Griggs

• Decision Date: 26 June 1924
• Docket Number: 11,902
• Parties: CITY OF JASONVILLE v. GRIGGS
• Court: Indiana Appellate Court

144 N.E. 560

82 Ind.App. 104

CITY OF JASONVILLE v. GRIGGS

No. 11,902

Court of Appeals of Indiana

June 26, 1924

Rehearing denied October 17, 1924.

From Sullivan Circuit Court; Walter F. Wood, Judge.

Action by Sylvester Adelia Griggs against the City of Jasonville. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Charles H. Heaton, Arthur T. Mayfield, Webster V. Moffet and Guy H Humphries, for appellant.

Cyrus E. Davis, Harrel & Edington and Daniel W. McIntosh, for appellee.

OPINION

NICHOLS, P. J.

Action by appellee against appellant for damages for injuries suffered by appellee because of a defective street in appellant city.

It is averred in the complaint, and appears by the evidence, briefly stated, that Horace street is one of the public streets in said city. That there existed in said street at the time of the injury complained of, on February 26, 1921, and had been for a long time theretofore, a dangerous mud-hole, or mud-filled depression in the traveled portion thereof, the depth and dangerous condition of which was concealed from view by the accumulation of water from rains. That appellant knew of the said condition of said street, but negligently failed to repair the same. Appellee was riding, as a guest of her daughter-in-law, in a buggy along said street, both of them being unfamiliar with the defective condition thereof as aforesaid. The daughter-in-law was driving the horse hitched to said buggy in a careful and prudent manner, when, without the fault or negligence of the said driver, or of appellee, the buggy was driven into said mud-hole, and a wheel on one side dropped down, which threw appellee over the dashboard, and on to the shafts, thereby injuring her. Due notice of the time, place and cause of such injury was given as required by statute.

There was an answer in denial, and a trial by jury which resulted in a verdict in favor of appellee in the sum of $ 2,250, upon which, after appellant's motion for a new trial was overruled, judgment was rendered.

Appellant assigns as error and presents that the court erred in overruling its challenge to the array of the jury, and its motion to discharge the same, and in overruling its motion for a new trial, under which it presents error in the giving of certain instructions, the insufficiency of the evidence to sustain the verdict and that the verdict is contrary to law.

The challenge to the array, which was verified, is as follows: "Comes now the defendant and after the above cause is called for trial and after a full jury has appeared in the jury box by order of court but before said jury has been sworn to answer questions and before said jury is sworn or impanelled to try this cause, and challenges the array of said jury for the reason that following named members of said array: John Wilson, Thomas Knotts, J. N. Luzader, Frank Jones, Jesse Halberstadt, Thomas Riggs, Dave Riggs, Dave Graham, William Smith, Ira Drake, Elmer Stewart, and George Goodman are not members of the regular nor special panel of jurors drawn by the jury commissioners of Sullivan county, Indiana for service in the May Term, 1923, of this Court, nor are they talesmen called as required by law. Wherefore, the defendant moves that the members of said array be discharged."

The motion to discharge the members of the jury is in substantially the same form, is based upon the same facts and presents the same question, as the challenge to the array. The record shows that: "The court having heard said challenge and being duly advised in the premises, overrules the same." The language of the court in State v. House, Mayor (1918), 187 Ind. 353, 357, 118 N.E. 528, is directly in point in this case. It is as follows: "The record here shows that the court was fully advised and, being so advised,--on what?--certainly on the merits of the challenges,--overruled the same. We must assume, in the...