City of Lafayette v. Fitch

• Decision Date: 06 January 1904
• Citation: 69 N.E. 414,32 Ind.App. 134
• Parties: CITY OF LAFAYETTE v. FITCH.
• Court: Indiana Appellate Court

32 Ind.App. 134

69 N.E. 414

CITY OF LAFAYETTE

v.FITCH.

Appellate Court of Indiana, Division No. 1.

Jan. 6, 1904.

Appeal from Superior Court, Tippecanoe County; H. H. Vinton, Judge.

Action by Dudley Fitch against the city of Lafayette. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Haywood & Burnett, for appellant. Everett & Everett and C. M. Bright, for appellee.

HENLEY, C. J.

This was an action for damages alleged to have been sustained by appellee as a result of falling into a ditch at the time being constructed by appellant in one of its streets for sewerage purposes, and which it is alleged was negligently permitted to remain open without guards or warnings of any kind. The complaint upon which the cause was tried was in one paragraph, and the issue was made by a general denial filed thereto by appellee. There was a trial by jury, which resulted in a verdict and judgment in appellee's favor in the sum of $300. The alleged errors relied upon for a reversal of this judgment are: (1) The overruling of appellant's demurrer to appellee's complaint; (2) the overruling of appellant's motion for a new trial.

It is contended by counsel for appellant that, while the complaint sufficiently avers facts stating negligence upon the part of appellant, it also, by its specific allegations, shows that appellee was guilty of contributing to his injury. It is the law that, where a complaint shows that the plaintiff was guilty of contributory negligence, notwithstanding the fact that it also shows the defendant was guilty of the negligence which caused the injury, such a complaint is insufficient, and that advantage may be taken of such defect by demurrer. City of Indianapolis v. Mitchell, 27 Ind. App. 589, 61 N. E. 947, and cases cited. It is also the law that the presumption indulged in favor of the plaintiff that he was free from negligence contributing to the injuries sued for will be overcome by specific averments of facts which show that he knew, or had opportunity to know, of the danger, and, knowing of the danger, he did not use care commensurate therewith. Salem Stone & Lime Co. v. Griffin, 139 Ind. 141, 38 N. E. 411. But a careful examination of the complaint in this case shows that the allegations of negligence upon the part of appellant are clearly and sufficiently set forth, and the facts averred are not sufficient, either directly or by inference, to charge the appellee with any negligence contributing to his...