City of New Albany v. Slattery

• Citation: 124 N.E. 755,72 Ind.App. 503
• Decision Date: 28 October 1919
• Docket Number: 10,095
• Parties: CITY OF NEW ALBANY v. SLATTERY
• Court: Court of Appeals of Indiana

124 N.E. 755

72 Ind.App. 503

CITY OF NEW ALBANY v. SLATTERY

No. 10,095

Court of Appeals of Indiana

October 28, 1919

Rehearing denied February 6, 1920.

From Clark Circuit Court; James W. Fortune, Judge.

Action by Sophia Slattery against the City of New Albany. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Charles L. Jewett, Walter V. Bulleit and Henry E. Jewett, for appellant.

Evan B Stotsenburg and John H. Weathers, for appellee.

OPINION

MCMAHAN, J.

Complaint by appellee to recover damages alleged to have been sustained by her while passing over a sidewalk in the city of New Albany. Trial by jury. Verdict and judgment for appellee.

The complaint alleged that appellant carelessly and negligently kept and maintained the sidewalk where appellee was injured in a defective, unsafe and dangerous condition for traveling, in that it negligently kept, suffered and permitted a large hole and excavation to be in the sidewalk in the traveled portion thereof, and that a part of the brick around the edge of the hole were loose, unsupported, and liable to turn when stepped upon, which made said sidewalk unsafe for travel; that appellant negligently maintained said walk in said dangerous condition without any barriers or guards around said hole and excavation; that said dangerous, unsafe and unguarded condition had existed for more than six months prior to appellee's injury; that the appellant long prior thereto well knew of said dangerous condition of the sidewalk, or, by the exercise of ordinary care, could have known of such dangerous condition long enough to have remedied and repaired the same, and that appellee had no notice or knowledge of its unsafe condition.

The jury in the answer to interrogatories found the following facts: Appellee, while passing along the sidewalk on the east side of Fourth street, stepped on a loose brick in the sidewalk and was injured. Just before she reached the place where she was injured, she was looking across the street at some children playing, and did not see the brick before she stepped upon it. She could not have seen the same in time to have avoided the injury if she had looked down at the walk instead of looking across the street at the children. She had not often passed over the place where she was injured, and there was no evidence that she had ever passed safely over said walk. She would have received the injury if she had used care for her own safety. The hole mentioned in the complaint was close to the building abutting on the sidewalk, but the loose brick on which she stepped was not near the building. She would have been injured if she had been walking in the middle part of the sidewalk. There is no evidence that the appellant knew or had any notice of the existence of the hole and loose brick mentioned in the complaint until after appellee was hurt. Appellee could not have seen the hole and loose brick if she had looked at the sidewalk. Her failure to look at the sidewalk where she was walking was not the cause of her injury, as she would not have escaped the injury had she looked at the sidewalk, nor did such failure contribute to her injury. Her injury did not result from her failure to look at the walk or to observe that care which an ordinarily prudent person would have observed in passing along said sidewalk.

Appellant's motion for judgment non obstante was overruled. This action of the court is the only error assigned. Appellant's contention is that the negligence charged against appellant was failure to repair after knowledge of the unsafe condition of the sidewalk; that this knowledge was stated in two ways: (1) That the city and its officers knew of the condition of the sidewalk, or (2) could have known it by the exercise of ordinary care, and that appellee cannot recover without proving that the city had actual or constructive notice of the alleged defective condition in the sidewalk. The complaint charged that "For more than six months prior to the happening of the grievances hereinafter set forth, said defendant, its officers and agents at the date of the happening of the grievances hereinafter set forth, and long prior thereto well knew of the said dangerous and unsafe condition of said sidewalk as aforesaid, or by the exercise of ordinary care could have known of the same long enough...