City of South Bend v. Turner

• Decision Date: 16 April 1901
• Parties: CITY OF SOUTH BEND v. TURNER.
• Court: Indiana Supreme Court

156 Ind. 418

60 N.E. 271

CITY OF SOUTH BEND

v.TURNER.¹

Supreme Court of Indiana.

April 16, 1901.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Action by Bennie Turner, suing by his next friend, against the city of South Bend and another. From a judgment in favor of plaintiff, defendant city appeals. Reversed.O. M. Cunningham, T. E. Howard, and Joseph G. Orr, for appellant. F. J. Lewis Meyer and Chas. P. Drummond, for appellee.

HADLEY, J.

Suit by appellee to recover damages for personal injuries. The facts set forth in the complaint are substantially as follows: On the 8th day of April, 1894, the defendants, being, respectively, a municipal and a private corporation, were engaged in the construction of a trunk sewer for the defendant city through one of its public streets, declining northward, and terminating in St. Joseph river. That at a point near its terminus the defendants constructed a manhole, circular in form, and 2 1/2 feet in diameter, near the center of a public street crossing, thus constituting a means of communication with said sewer from the surface of the street to the bottom of said sewer, a distance of 29 feet. That said manhole was carelessly and negligently permitted by the defendants to be open and uncovered on said day, and was and had been carelessly and negligently permitted by the defendants to be and remain open and uncovered continuously prior thereto for many days and weeks, without any signal or warning of any kind, and without any protection to persons lawfully upon the street. That said sewer, from its mouth or terminus to the manhole, and for some distance beyond, had been in part completed, and large piles of sand had been piled upon the street where the sewer was completed, near the manhole, by the defendants, and had been by them carelessly and negligently permitted to remain there, and were calculated to, and did, attract children for the purpose of engaging in play in the sand. That the children in the neighborhood were accustomed, with the knowledge of the defendants, to play in the street with said sand piles. That the plaintiff on said day, being 6 1/2 years of age, was so engaged at play with said sand piles, and at the time did not know of the open condition of the manhole, and while so engaged in play, and while in the exercise of due care and caution, did, by reason of the negligence of the defendants as aforesaid, fall into said open manhole, and was precipitated to the bottom of the sewer, without fault, and without any warning by the defendants of the danger existing by reason of the open manhole, and whereby he was greatly injured.

The complaint is in four paragraphs. The first was withdrawn. The second and third are, in substance, the same. The fourth charges that the manhole at the time of the accident was, and had been for many days and weeks, negligently suffered by the defendants to be and remain insufficiently covered, etc. The joint demurrer of the defendants and the separate demurrer of the defendant city to each paragraph of the complaint were overruled, and a joint exception to both rulings reserved. Upon issues joined, the jury returned a general verdict for appellee, and answers to divers interrogatories. The city alone appeals, and assigns for error (1) the insufficiency of the facts stated to constitute a cause of action against it; (2) the action of the court in overruling its demurrer to each paragraph of the complaint; (3) in overruling its separate motion for judgment in its favor on the answers to interrogatories; and (4) in the overruling of its separate motion for a new trial.

No question upon the complaint is properly presented by the demurrers. The record shows that “the defendants demur to each paragraph of the complaint,” etc. Then follow three separate papers, being the separate demurrers of the defendant city to each the second, third, and fourth paragraphs of the complaint, and the record then proceeds: “Which demurrers the court overruled, to which ruling of the court defendants except.” Exceptions taken thus in gross reserve no question, and the assignment of error predicated thereon by one of the exceptors is futile. Johnson v. McCulloch, 89 Ind. 270, 273;Telegraph Co. v. Trissal, 98 Ind. 566, 570;Walter v. Walter, 117 Ind. 247, 249, 20 N. E. 148; Elliott, App. Proc. § 788.

Appellant, however, makes an independent assignment of error that the complaint does not state facts sufficient to constitute a cause of action against it. The total absence from the complaint of any averment of some fact or facts essential to the existence of the cause of action, or the presence of some averment that absolutely destroys the plaintiff's right of recovery, may be for the first time raised in this court by an independent assignment of errors, under section 346, Rev. St. 1881 section 346, Burns' Rev. St. 1894; section 343, Horner's Rev. St. 1897); but mere uncertainty or inadequacy of averment, such as might have been amended and cured upon motion seasonably made, will be deemed to have been waived by a defendant who proceeds with the trial to final judgment without objection, and who brings his complaint for the first time after the cause of action has been strengthened by the verdict of a jury and the presumptions indulged in favor of the decisions of the trial court upon the motions for judgment and for a new trial. Shoemaker v. Williamson (at this term) 59 N. E. 1051, and authorities cited; Kinney v. Dodge, 101 Ind. 573;Smith v. Smith, 106 Ind. 43, 45, 5 N. E. 411. This assignment of error challenges the complaint as an entirety, and if any paragraph thereof is sufficient the assignment must fail. Buchanan v. Lee, 69 Ind. 117;Caress v. Foster, 62 Ind. 145;Miller v. Billingsly, 41 Ind. 489, 492. The complaint avers that the defendants were constructing the sewer; that they had constructed the manhole; that the defendants negligently permitted the manhole to be and remain open and uncovered on the day of the plaintiff's injury, and to so be and remain open and uncovered continuously for several weeks prior thereto, and negligently permitted a large sand pile, which defendants had produced, to be and remain on said day, and for several weeks prior thereto, near the manhole, and at a point on said sewer where the same was completed, with the knowledge that the children in the neighborhood, including the plaintiff, were accustomed to play in said sand pile. There is no suggestion in the complaint that the defendant construction company was an independent contractor, nor that it had the exclusive possession of the street; nor does it appear, from anything averred, except for the presence of the sand pile, that the public was prevented or in any way denied the usual right of play or travel in the street. Even assuming, as appellee argues, that the facts pleaded show that the street was so obstructed by the construction of the sewer as to be inconsistent with public use, and that the construction company was necessarily in the exclusive possession of the street, the city would not thereby be relieved of liability, when it is shown that it had notice, or might have had notice by the exercise of proper oversight, that its licensee had acted in a negligent manner, and left its streets in an unsafe and dangerous condition. Staldter v. City of Huntington, 153 Ind. 354, 362, 55 N. E. 88;Senhenn v. City of Evansville, 140 Ind. 675, 40 N. E. 69;City of Indianapolis v. Doherty, 71 Ind. 5; Elliott, Roads & S. (2d Ed.) § 634. We are unable to see why the complaint is not sufficient against the city if tested by demurrer, and it is clearly so when questioned for the first time in this court.

With respect to the motion for judgment on the answers to interrogatories notwithstanding the general verdict, the rule is that all reasonable presumptions must be indulged against the special answers and in support of the general verdict, and if the general verdict, thus aided, is not in irreconcilable conflict with the answers, it must stand. Railway Co. v. Creek, 130 Ind. 139, 142, 29 N. E. 481, 14 L. R. A. 733;Assurance Co. v. Wilson, 132 Ind. 278, 283, 31 N. E. 938;Railway Co. v. Schmidt, 134 Ind. 16, 33 N. E. 774;Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235. The reason of the rule is that the jury is required to pronounce upon all the issuable facts proven in the case, while the court, in testing the force of isolated facts disclosed by answers to interrogatories, does not know and cannot know what other facts touching the same matters were rightfully before the jury to justify their verdict. Therefore, in conceding to the jury the presumption of right judgment, to overthrow its general verdict, the special facts returned must be of such a nature as to exclude the possible existence of other controlling facts, provable under the issues, relating to the same subject. The answers show that the construction company had exclusive possession of the street at the manhole for the purpose of building the sewer, that said company frequently warned boys away from playing in the sand pile near the open manhole, that the plaintiff knew that the manhole was uncovered, and that he was 6 1/2 years of age; and from the answers it is contended that it affirmatively appears that the plaintiff was guilty of contributory negligence, and the city free from liability. If there were no other answers supportive of the general verdict, we could not approve the contention. We could not assume that a boy 6 1/2 years of age was so advanced in knowledge as to be able to know when he was in a place where he ought not to be, and to appreciate the evidences and presence of danger (Railway Co. v. Klee, 154 Ind. 430, 56 N. E. 234); nor would the isolated fact that the construction company had the exclusive possession of the street for the purpose of building the sewer prevail, as a defense for the city, against the presumptions that would arise under the...