City of Linton v. Smith

• Decision Date: 28 October 1903
• Citation: 68 N.E. 617,31 Ind.App. 546
• Parties: CITY OF LINTON v. SMITH.
• Court: Indiana Appellate Court

31 Ind.App. 546

68 N.E. 617

CITY OF LINTON

v.SMITH.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1903.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Action by Mary Smith against the city of Linton for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Daniel W. McIntosh and Cyrus E. Davis, for appellant.

ROBY, J.

Appellee recovered judgment for $410. Appellant's demurrer to the complaint was overruled, as was its motion for a new trial. The complaint was in one paragraph, “the gist of which is that appellant, a municipal corporation, was guilty of negligently permitting its sidewalks to be in and remain out of repair, and on which sidewalk appellee stumbled, fell, and was injured.” It is averred that the appellant had notice of the dangerous condition of the sidewalk for a long time prior to the date of the accident. This was a sufficient averment. Notice is not a conclusion, but an ultimate fact. Chicago, etc., R. Co. v. Fry, 131 Ind. 319, 325, 28 N. E. 989;Locke v. Bank, 66 Ind. 353. It is not necessary to prove actual notice of such defect by the city. Lyon v. City, 9 Ind. App. 21, 27, 35 N. E. 128;Turner v. City of Indianapolis, 96 Ind. 51, 59. The instructions given by the court include a number of inaccurate expressions, but in their entiretythey contain a correct statement of the law, which is all that is required. R. Co. v. Hamer, 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778. There is no question but that appellee was injured on account of being “up-dumped” by a loose board upon a part of the street surface. It is inferable that the board was rotten. The extent of her injury is not so clear. The case was twice tried, one jury disagreeing. One reason for a new trial stated is newly discovered evidence. The affidavit supporting the motion shows that the proposed evidence tends to prove that the plaintiff, after her alleged injury, used her arm in a manner inconsistent with her claim of injury. Other evidence to the same effect was introduced on the trial, and a new trial will not be granted on account of newly discovered evidence which is cumulative. It not infrequently happens that in personal injury cases those clearly entitled to redress for bona fide injuries overreach themselves by simulating additional ones. The extent of the injuries to appellee's shoulder is a matter of some doubt, but it is quite possible that she was hurt exactly as she says she was. Nothing was...