City of Martinsville v. Winscott
| Decision Date | 13 February 1940 |
| Docket Number | No. 16316.,16316. |
| Citation | 25 N.E.2d 283,107 Ind.App. 475 |
| Parties | CITY OF MARTINSVILLE v. WINSCOTT. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Putnam Circuit Court; C. C. Gillen, Judge.
Action by Harvey Winscott against the City of Martinsville, Ind., a municipal corporation, for damages for injuries sustained when the plaintiff fell into a manhole in one of the city sewers because of alleged defective covering. From a judgment for the plaintiff, the defendant appeals.
Affirmed.Gilbert W. Butler, of Martinsville, and Lyon & Abrams, of Greencastle, for appellant.
Fenton, Steers, Beasley & Klee, of Indianapolis, for appellee.
This was an action by the appellee against the City of Martinsville for damages for injuries sustained when the appellee fell into a manhole in one of the city sewers because of a defective covering. The case was submitted to a jury for trial which returned a verdict in favor of the appellee in the sum of $750. The court rendered judgment on this verdict and a motion for new trial was filed and overruled and this appeal has been taken.
[1][2][3] The appellant assigns as error, first, that the court erred in giving to the jury Instruction No. 43; second, that the court erred in refusing to give to the jury each of instructions No. 7 to No. 10, inclusive, tendered by the appellant; third, the court erred in overruling appellant's motion for new trial. It will be noted that the first two assignments of error are not proper and accordingly present no question. Errors in the giving or refusal of instructions are not proper independent assignments of error. Such questions must first be presented to the trial court in a motion for new trial. Raper v. American TinPlate Co., 1901, 156 Ind. 323, 59 N.E. 937;Leinss et al. v. Weiss, 1904, 33 Ind. App. 344, 71 N.E. 254;Rahke v. McNulty, 1914, 55 Ind.App. 615, 104 N.E. 523;Coca Cola Bottling Co. v. Wheeler, 1935, 99 Ind.App. 502, 193 N.E. 385. The alleged error in the giving or refusal of instructionswas not embodied in the appellant's motion for new trial and hence we cannot consider the correctness of these instructions even under the appellant's third assignment of error.
[4] In support of the alleged error in overruling appellant's motion for new trial the appellant contends that the verdict of the jury is not sustained by sufficient evidence. The appellant contends that there is no evidence of any definite or specific defect in the covering of the manhole. On this issue, there is evidence in the record to the effect that the lid or covering on this manhole was warped, that it did not fit properly on the base and that one stepping on the edge of the same would cause the lid to slip off or tilt. While it is true that there is other testimony to the effect that there was no defect in the lid, the most that this court can say is that there is an apparent conflict in the evidence with respect to this issue and this court cannot accordingly weigh such evidence. Pennsylvania Railroad Co. v. Boyd, 1933, 98 Ind.App. 439, 185 N.E. 160;Moorman Mfg. Co. v. Keller, 1933, 98 Ind.App. 607, 184 N.E. 913;Bachus v. Ronnebaum, 98 Ind.App. 603, 186 N.E. 386;Chicago, S. S. & S. B. R. Co. v. Luca, 1930, 91 Ind.App. 521, 170 N.E. 564.
The appellant further contends that the court erred in admitting evidence as to injuries which the appellee sustained to his back for the reason that injuries to his back were not included in the notice to the city of the appellee's injuries as required by Sec. 48-8001, Burns' Ind.Statutes, 1933 Revision, Sec. 12511, Baldwin's Ind.St.1934. The appellant contends that the notice to the city described no injury to his back and hence any evidence of injury to his back was improper. The questions, objections thereto, and answers on this particular subject matter are not embodied in the motion for new trial and...
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