City of Jeffersonville v. Gray

• Decision Date: 31 May 1905
• Docket Number: No. 20,618.,20,618.
• Citation: 165 Ind. 26,74 N.E. 611
• Parties: CITY OF JEFFERSONVILLE v. GRAY.
• Court: Indiana Supreme Court

165 Ind. 26

74 N.E. 611

CITY OF JEFFERSONVILLE

v.GRAY.

No. 20,618.

Supreme Court of Indiana.

May 31, 1905.

Appeal from Circuit Court, Clark County; James K. Marsh, Judge.

Action by Arthur L. Gray against the city of Jeffersonville. From a judgment for plaintiff, rendered over defendant's motion for judgment on the answers to interrogatories notwithstanding the general verdict, defendant appeals. Affirmed.

G. H. Voigt and H. F. Dilger, for appellant. Stotsenburg & Weathers and H. W. Phipps, for appellee.

MONKS, J.

Appellee brought this action to recover for personal injuries received by him on account of the alleged negligence of appellant in failing to keep in repair a public wharf of said city. The jury returned a general verdict in favor of appellee, and also answers to interrogatories submitted by the court. Over appellant's motion for a judgment in its favor upon the answers to the interrogatories notwithstanding the general verdict, the court rendered judgment in favorof appellee. This ruling of the court on appellant's said motion for a judgment in its favor is assigned for error.

In discussing this alleged error, appellant claims that there was a failure of proof of a material averment of the complaint. No such question is presented by the error assigned. To present such a question, the same must be assigned in a proper manner as a cause for a new trial, and the overruling of the motion for a new trial assigned as error on appeal, and the evidence given in the cause made a part of the record on appeal; none of which steps have been taken in this case.

In determining the correctness of the action of the court in overruling appellant's said motion for judgment we can only consider the complaint, answer, general verdict, and answers of the jury to the interrogatories. Consolidated Stone Co. v. Summit, 152 Ind. 297, 300, 53 N. E. 235;Indiana, etc., R. Co. v. Maurer, 160 Ind. 25, 27, 66 N. E. 156.

The complaint, omitting caption and signature, reads as follows: “The plaintiff complains of the defendant, and alleges that the defendant is a municipal corporation duly organized under the general laws of the state of Indiana. That said defendant, at the time of the grievances hereinafter mentioned, and for many years prior thereto, kept and maintained a public wharf on the front of said city along the Ohio river, which was much traveled and used by the public generally in going to and from said river. That immediately in front of said wharf there is maintained a wharfboat, with aprons or approaches leading thereon, for wagons and foot passengers to reach the steam ferryboats that are operated between said defendant city and the city of Louisville. That at the top of the river bank, and leading down onto said wharf, there is a street known and called ‘Spring Street,’ which runs back through said city, and one block further west is another street named Pearl, leading down and onto said wharf. That leading from the said wharfboat to the top of the river bank there was at the time hereinafter mentioned a stone walk for foot passengers, across and over which there ran diagonally a road or track for vehicles, extending from said Pearl street across said wharf to the ferry landing. That on the 14th day of April, 1902, said track aforesaid on said wharf, which was much used and traveled by the public in hauling hay, grain, and other produce, was negligently allowed to be and become out of repair and dangerous for the public to use, and at a point thereon where said track crossed said stone footway there was a dangerous hole or jump-off therein. That said dangerous place in said wharf had existed for more than six months prior to the said 14th day of April, 1902. That on said day above-mentioned plaintiff was proceeding from his home near Sellersburg, Ind., to the city of Louisville, with a wagon loaded with hay drawn by two horses, and while driving along said track over and along said wharf, as he lawfully might, without any knowledge of the dangerous and unsafe condition of said wharf as aforesaid, and with due and proper care and without fault on his part, but solely on account of the defective condition of said way, the wagon upon which he was riding was overturned, and plaintiff was precipitated upon the stones of said wharf, by which he was bruised, from the effects of which he ever since has, does now, and will continue to suffer great pain, be sore and crippled, and has been compelled to expend large sums of money for medical, nurse, and surgical hire, to his damage in the sum of five thousand dollars. That said defective condition of said wharf was known to said defendant, or, with the exercise of reasonable diligence, might have been known. Wherefore plaintiff prays judgment for five...