City of Michigan City v. Phillips
| Decision Date | 10 June 1904 |
| Docket Number | 20,375 |
| Citation | 71 N.E. 205,163 Ind. 449 |
| Parties | City of Michigan City v. Phillips, by Next Friend |
| Court | Indiana Supreme Court |
Rehearing Denied October 28, 1904.
From St. Joseph Circuit Court; W. A. Funk, Judge.
Action by Agnes M. Phillips, by her next friend, against the city of Michigan City for damages for personal injuries. From a judgment of the Appellate Court affirming a judgment for the plaintiff, the defendant appeals to this court under subdivision 3, § 1337j Burns 1901.
Affirmed.
C. R & J. B. Collins and J. G. Williams, for appellant.
W. W Pepple and J. F. Gallaher, for appellee.
Appellant in this appeal has assigned as error that the first division of the Appellate Court erred in affirming the judgment of the St. Joseph Circuit Court. This assignment brings the alleged errors assigned for reversal in the Appellate Court before us for review in like manner as in cases originally appealed to the Supreme Court.
The appellee Agnes Phillips, a minor, by her next friend, instituted this action against appellant in the Laporte Circuit Court to recover damages for personal injuries sustained by her on the 8th day of September, 1899, by reason of her falling through a defective sidewalk, which, as alleged, was negligently maintained by appellant city. At the time of the accident it appears that appellee was a young woman about eighteen years of age, and the plank sidewalk in controversy was situated on the east side of Franklin street, one of the principal public streets of the city of Michigan City. This walk extended from the property line to the curb line of the street, and was about fourteen feet wide, and underneath there was a hole or excavation to the full width of the walk. Appellee in passing over this walk, and while in the exercise of due care, stepped upon one of the boards, and by reason of its being in a rotten or decayed condition it broke, and her left foot and leg went down through the walk into the hole or excavation below, up to the hip, by reason of which she was seriously injured.
The complaint is in two paragraphs, and appellant's answer is the general denial. The cause was venued to the St. Joseph Circuit Court, in which a trial by jury resulted in a finding in favor of appellee, awarding her damages in the sum of $ 9,000. Along with the general verdict the jury returned answers to numerous interrogatories. Over appellant's motion for judgment in its favor on these answers, and also over its motion for a new trial, the court rendered judgment on the verdict.
Two principal errors are relied upon by appellant for a reversal of the judgment of the lower court: (1) Denying its motion for judgment upon the answers to the interrogatories; (2) overruling its motion for a new trial.
An inspection of the special findings of the jury upon the interrogatories fully discloses that the court was justified in denying appellant's motion for judgment thereon. The answers returned by the jury to the interrogatories, when considered as a whole, are in harmony with and support the general verdict.
Under the second alleged error, overruling the motion for a new trial, appellant's counsel criticise and object to numerous instructions given by the court, and also to the rulings of the court in refusing to give certain instructions as requested. We are, however, confronted with the insistence of appellee's counsel that the instructions given by the court have not been properly made a part of the record, for the reason that they do not appear to have been signed by the trial judge, as required by clause six of § 542 Burns 1901.
Appellant attempted to employ two methods for presenting for review on appeal the instructions given and refused by the court: (1) Under § 544 Burns 1901, which provides that the memorandum therein prescribed shall be written on the margin or at the close of each instruction; (2) by incorporating the instructions in question into the original bill of exceptions which embraces the longhand manuscript of the evidence. That the instructions have not been made a part of the record under the statutory method, for the reason that there is nothing whatever in the record to disclose that they were signed by the trial judge as required by clause six of § 542, supra, is evident. It has been settled by many decisions of this court that in order to make instructions given by the court upon the trial of a civil cause a part of the record without a bill of exceptions or order of court, they must be excepted to as prescribed by § 544, supra, and in addition thereto it must affirmatively appear from the record that they were signed by the trial judge, and filed as required by clause six of § 542, supra. Landwerlen v. Wheeler (1886), 106 Ind. 523, 5 N.E. 888, and cases cited; Silver v. Parr (1888), 115 Ind. 113, 17 N.E. 114; Van Sickle v. Belknap (1891), 129 Ind. 558, 28 N.E. 305; Butler v. Roberts (1889), 118 Ind. 481, 21 N.E. 42; City of Indianapolis v. Mitchell (1901), 27 Ind.App. 589, 61 N.E. 947.
As the instructions given by the court are not shown to have been signed by the judge as required by the statute, we are compelled to hold, under the rule asserted and enforced by the above decisions, that they have not been made a part of the record under the method provided by the statute. The fact that the instructions given and refused have been incorporated into the original bill of exceptions containing the longhand manuscript of the evidence, which bill has been certified up under the provisions of the statute of 1897, does not serve to make them a part of the record. This is a well-settled proposition. Carlson v. State (1896), 145 Ind. 650; Leach v. Mattix (1897), 149 Ind. 146, 48 N.E. 791; Adams v. State (1901), 156 Ind. 596, 59 N.E. 24.
As the instructions given by the court are not before us for the reasons stated, therefore, appellant's complaint that the court erred in refusing to give at its request certain other instructions is of no avail, for, under the circumstances, we must indulge all reasonable presumptions in favor of the trial court in its refusal to give the instructions requested by appellant. City of New Albany v. McCulloch (1891), 127 Ind. 500, 26 N.E. 1074; Wilson v. Johnson (1896), 145 Ind. 40, 38 N.E. 38; Conner v. Citizens' St. R. Co. (1896), 146 Ind. 430, 45 N.E. 662; City of Indianapolis v. Mitchell, supra.
The evidence in the record clearly proves that appellant, in maintaining the sidewalk where appellee was injured in its decayed and unsafe condition, was guilty of negligence, and that her right of action for the injuries which she sustained was fully established. Appellant's contention that the evidence shows contributory negligence on her part at the time of the accident has no foundation, and is wholly without merit. That appellant city had notice or knowledge of the unsafe condition of the sidewalk for a long time prior to the accident is expressly found by the jury in their special findings, and is fully sustained by the evidence. The sidewalk had been built and maintained for over twelve years. It appears to have been in a rotten and decayed condition at the place where the accident occurred for a year and over prior thereto. It had been "patched up," as witnesses testified, with pieces of tin, although it had the appearance of being safe for travelers to pass over. It certainly was the duty of appellant to maintain its sidewalks in a reasonably safe condition for travel thereover, and it was incumbent upon it to exercise reasonable care and diligence to ascertain whether the walk in question was...
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