City of Logansport v. Gammill, 18933

• Decision Date: 25 November 1957
• Docket Number: No. 18933,18933
• Citation: 145 N.E.2d 908,128 Ind.App. 53
• Parties: CITY OF LOGANSPORT, Indiana, Appellant, v. Willard J. GAMMILL, Appellee.
• Court: Indiana Appellate Court

Page 908

145 N.E.2d 908

128 Ind.App. 53

CITY OF LOGANSPORT, Indiana, Appellant, v. Willard J. GAMMILL, Appellee.

No. 18933.

Appellate Court of Indiana, In Banc.

Nov. 25, 1957.

Tom F. Hirschauer, Leland L. Smith, Logansport, Lester L. Wilson, Winamac, for appellant.

Myers & Molique, Logansport, for appellee.

PFAFF, Judge.

This action was brought by appellee to recover damages for personal injuries, pain and suffering, loss of wages and other surgical expenses incurred and sustained by reason of a fall on a sidewalk in the city of Logansport. Trial by jury resulted in a verdict for $4,500 on which judgment was rendered. Appellant assigns as error the overruling of its motion for new trial.

The evidence discloses that at the place on the concrete sidewalk where appellee fell there was a broken slab of sidewalk about eighteen inches square, next to a water meter box. Appellee had known of the broken condition of the sidewalk for about one year. The fall occurred in the night time, at a time when a street light which normally illuminated the area was not functioning. When appellee stepped on the broken slab it tilted and tipped up, causing him to fall. There was a hole about a foot and a half deep under the broken slab, so that the slab did not have subjacent support. Appellee testified that there was nothing about the sidewalk surrounding the meter box, other than the cracked and broken condition of the sidewalk, which would have led him to believe that there was a hole underneath. Another witness testified that, 'the condition of the sidewalk all started by a meter being put in there. When they filled it in, they filled it with soft materials. I cannot explain why, but that material was washed out of there--it had washed back into the sidewalk.' The water meter was a city water meter which it was the practice of the City to read each month. There was further testimony that prior to appellee's fall it was possible to look straight down and see the hole.

Appellant's demurrer to appellee's amended second paragraph of complaint for want of facts was overruled, and this ruling is presented as error. This paragraph, for the sake of convenience, will hereinafter be referred to simply as the complaint.

The complaint alleges that the sidewalk surrounding the water meter box or receptacle for a radius of approximately two feet was cracked and broken for a period of at least one year prior to appellee's fall, and that during such period the earth beneath such cracked and broken portion had eroded from the accumulation of moisture so as to cause a hole or depression or cavity to the approximate depth of eighteen inches, leaving the broken portion without a firm foundation; that the appellant, in the exercise of ordinary and reasonable care, could have discovered such cracked and broken condition of the sidewalk and could have discovered the hole or depression thereunder at that point; appellee stepped on the broken portion of the sidewalk adjacent to said metal water meter box or receptacle, which tilted or turned under his weight allowing appellee's foot to slip into the hole throwing appellee violently down on the concrete sidewalk.

Appellant argues that the complaint is insufficient because 'there is no allegation or showing of knowledge or notice on the part of defendant of such alleged condition and of the failure of the defendant to act after having knowledge or notice thereof.' The complaint in this case is similar to the complaint in the City of Indianapolis v. Ray, 1912, 52 Ind.App. 388, 97 N.E. 795, transfer denied:

'In an action against a municipal corporation for personal injuries caused by a defective sidewalk, a paragraph of complaint alleging facts showing that the sidewalk had been unsafe for a number of years, that defendant, by the exercise of proper care and diligence, could have known of such unsafe condition and could have made the same safe before the injury, that, for a period of two years before the injury, employes of defendant inspected the basement of a building adjacent to such sidewalk, and, if such inspections had been made with proper care, the defect could have been discovered, and that plaintiff had no knowledge of such defective condition, and could not have discovered it in the exercise of ordinary care, shows a violation of a duty owing to plaintiff and is sufficient to withstand a demurrer.'

Actual notice to the City is not essential. It is sufficient if facts are pleaded from which notice may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known to and remedied by the City. The complaint is sufficient in this respect. City of Indianapolis v. Ray, supra; Turner v. City of Indianapolis, 1884, 96 Ind. 51; City of Michigan City v. Phillips, 1904, 163 Ind. 449, 71 N.E. 205; Town of New Castle v. Grubbs, 1908, 171 Ind. 482, 86 N.E. 757; City of Indianapolis v. Murphy, 1883, 91 Ind. 382; Town of Lewisville v. Batson, 1902, 29 Ind.App. 21, 63 N.E. 861.

In the case of Town of Lewisville v. Batson, supra [29 Ind.App. 21, 63 N.E. 862], it was stated:

'* * * It is required to use active vigilance with reference to the condition of its streets, and if an obstruction has existed for such a length of time that, considering the circumstances of the case, the municipality or its officers might have obtained knowledge of it by the exercise of a reasonable degree of diligence and attention to the condition of the streets, knowledge of the obstruction will be implied.' With cases cited.

Appellant also argues that the notice served on the City, as shown by a copy thereof filed with the complaint and reading as follows:

'December 28, 1951

'City of Logansport Logansport, Indiana

'Attention: Mr. George F. Muehlhausen, Mayor

'or

'William H. Jones, City Clerk-Treasurer

'You are hereby notified that on November 1st, 1951, at about 4:25 o'clock A.M. I sustained personal injuries and property damage when I fell after stepping into a hole in the sidewalk in front of the office of the Railway Express Agency, 320 East Melbourne Avenue in the City of Logansport, Cass County, Indiana; I had no knowledge or notice of such hole and to the best of my information it was one which remained after the installation of a water meter.

'In falling I twisted the muscles in my left leg, sprained my right ankle, bruised my hip and sustained a double hernia; I also broke my eyeglasses.

'Because of my injuries, I was hospitalized for a period of fourteen (14) days, and have been confined to my home since my dismissal from the hospital. At the present time I am totally disabled and will probably suffer permanent disability as a result of my said injuries. I do not know how much longer I will be confined to my home, nor do I know when I will be able to return to work.

'This notice is given pursuant to Section 48-8001, Burns Indiana Statutes Annotated, 1950 Replacement.

'Dated this 28th day of December, 1951.

(sgd.) 'Willard J. Gammill

'WILLARD J. GAMMILL

'509 Burlington Avenue

'Logansport, Indiana'

was insufficient in that the notice stated that appellee fell after stepping into a hole in the sidewalk and did not refer to the sidewalk being cracked and broken, whereas, appellant argues, the complaint is based upon negligence in failing to discover the cracked and broken sidewalk and permitting it to remain. The complaint actually alleges both the cracked and broken condition of the sidewalk and a hole thereunder and that the concrete slab tilted or turned under appellee's weight, allowing his foot to slip into the hole.

The notice referred to is that required by § 48-8001, Burns 1950 Replacement. This statute requires '* * * a brief general description of the date and time, the place, the conditions and cause, the nature and extent of the injury to person and loss, injury or damage, if any, to property, * * *.'

As stated by Judge Bowen of this court, in City of Gary v. Russell, 1953, 123 Ind.App. 609, 112 N.E.2d 872, 874:

'* * * The object of our statute is to afford municipal authorities an opportunity to investigate the facts concerning an accident allegedly caused by the negligence of such municipality and its officers while such evidence is available. McQuillin, Municipal Corporations, 2d Edition, Vol. 6, Ch. 53, § 2895, and cases therein cited.'

The notice answered the intent and purpose of the statute. While the statute is directly construed as to its requirements that notice be given to the proper officers within the specified time, the rule of liberal construction applies to whether a notice is sufficiently definite as to the time, place, nature and extent of the injury. City of Gary v. Russell, supra; City of Gary v. McNulty, 1935, 99 Ind.App. 641, 194 N.E. 193; City of East Chicago v. Gilbert, 1915, 59 Ind.App. 613, 108 N.E. 29, 109 N.E. 404, transfer denied. We, therefore, hold the notice to have been sufficient, and that there was no material variance between the allegations of the complaint and the facts set forth in the notice. There was no error in overruling the demurrer. We further find that there was no material variance between the facts set forth in the notice and the evidence adduced upon the trial. See Annotation 52 A.L.R.2d 966.

Appellant contends that appellee knew of the cracked condition of the sidewalk and did not avoid that portion of the walk; that the evidence compels the conclusion that he was guilty of contributory negligence.

The mere fact that a person knows of a defect in a sidewalk is not conclusive evidence of negligence on his part in attempting to use it, but he is required to use care commensurate with the known danger. City of Huntingburgh v. First, 1896, 15 Ind.App. 552, 43 N.E. 17; Town of New Castle v. Mullen, 1909, 43 Ind.App. 280, 87 N.E. 146; Cochran v. Town of Shirley, 1909, 43 Ind.App. 453, 87 N.E. 993.

A sidewalk might be so defective that a person of ordinary prudence would know that it could not be...