City of Terre Haute v. Lauda

• Decision Date: 22 April 1915
• Docket Number: No. 8568.,8568.
• Citation: 58 Ind.App. 480,108 N.E. 392
• Parties: CITY OF TERRE HAUTE v. LAUDA.
• Court: Indiana Appellate Court

58 Ind.App. 480

108 N.E. 392

CITY OF TERRE HAUTE

v.LAUDA.

No. 8568.

Appellate Court of Indiana, Division No. 1.

April 22, 1915.

Appeal from Superior Court, Vigo County; John E. Cox, Judge.

Action by Maude R. Lauda against the City of Terre Haute. From a judgment for plaintiff, defendant appeals. Affirmed.Peter M. Foley, Thos. J. Roach, and Thos. F. O'Mara, all of Terre Haute, for appellant. Hamill, Hickey & Evans, of Terre Haute, for appellee.

FELT, J.

This is an appeal from a judgment in damages for $500, obtained by appellee against appellant for personal injuries alleged to have been caused by a defect in one of appellant's streets.

The errors, properly assigned, presented, and relied on for reversal, are: The overruling of appellant's motion to make the complaint more specific. The overruling of appellant's demurrer to the amended complaint. The complaint does not state facts sufficient to constitute a cause of action. Overruling appellant's motion to strike out parts of the amended complaint. Overruling appellant's motion for a new trial. Overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict.

The complaint is long, and sets out many collateral matters in detail. Its material averments pertinent to the questions raised by this appeal are as follows: Appellant is a municipal corporation. On November 1, 1910, and for more than two months prior thereto, it carelessly and negligently permitted and allowed a hole about 4 inches deep, 14 inches wide, and 2 feet long to remain in one of its streets known as South Seventh street and near Wabash avenue, and negligently and carelessly failed to guard, protect, or cover said hole. Appellee, while transferring from one city car to another at such point and while using said street, was seriously injured. The averments which show the manner in which she received such injuries are as follows:

“That on said 1st day of November, 1910, at the time plaintiff received her injuries, as hereinafter alleged, and during all of said day, it had been raining in the city of Terre Haute, and the said hole which said defendant carelessly and negligently permitted and allowed to be and remain in said street, as aforesaid, as a result of said rain, at the time plaintiff received her injuries, as hereinafter alleged, was full of water, and *** it was nighttime and very dark. That when said passenger car stopped on said South Seventh street at said point, at and near said Wabash avenue, as aforesaid, plaintiff got off said car, and while using due care and diligence for her own safety *** was walking from said point where she got off said car *** to the point on said Wabash avenue and said South Seventh street which would take her to her home, *** and while using due care and diligence, as aforesaid, plaintiff, at about the hours of 5:45 o'clock p. m. of said day, through all of said carelessness and negligence of said defendant, stepped, slipped, and fell into said hole on said South Seventh street,” and was severely injured. “That plaintiff received all of said injuries wholly through said carelessness and negligence of said defendant, and without any fault or negligence on” her part.

It is also charged that the city had notice and knowledge of the alleged defect two months prior to the injury, and in ample time to have repaired the same, and appellee had no knowledge thereof.

[1] Appellant's motion to make more specific contains a number of specifications, but only the third and ninth are duly presented. Appellant has not indicated in what respect it was hindered in the preparation of its defense or deprived of any substantial right by the court's ruling on the motion. Pittsburgh, etc., R. Co. v. Ross, 169 Ind. 3, 80 N. E. 845;Annadall v. Union, etc., Co., 42 Ind. App. 264, 84 N. E. 359. The third specification asks for more definite allegations as to “the shape, form, and contour of the hole in the street which” appellee alleges caused her injury.

[2] It is alleged in the complaint:

“That on the 1st day of November, 1910, and for more than two months prior thereto, said defendant carelessly and negligently permitted and allowed to be and remain in said South Seventh street, about 8 feet east of the west curb line of said street, and about 25 feet south of said Wabash avenue, and on the west side of said street railway, a hole about 4 *** inches deep, 14 *** inches wide, and 2 *** feet long.”

The rule is established that a defendant, in an action for personal injuries, is entitled to know from the complaint the specific acts or omissions on which the plaintiff relies as constituting negligence, and likewise the surrounding and existing conditions, and what occurred at the time of the injury. But under the repeated decisions of our Supreme Court and of this court, when applied to the facts of this case, no reversible error was committed in overruling the motion to make the complaint more specific in the respect above indicated. Terre Haute, etc., Co. v. Ward, 102 N. E. 395, 397;Cleveland, etc., R. Co. v. Bowen, 179 Ind. 142, 100 N. E. 465;Diamond, etc., Co. v. Cuthbertson, 166 Ind. 290, 76 N. E. 1060;Illinois, etc., Co. v. Cheek, 152 Ind. 663, 53 N. E. 641;Grass v. Ft. Wayne, etc., Co., 42 Ind. App. 395, 81 N. E. 514. See City of Indianapolis v. Stokes (Sup.) 105 N. E. 477, 478;City of Evansville v. Pifer, 51 Ind. App. 646, 100 N. E. 110;Schapker v. Schwetz, 105 N. E. 579.

[3] The ninth specification in appellant's motion to make the complaint more specific asks that appellee state more “definitely and particularly how she stepped, slipped, and fell into the alleged hole in the street.” Whatever may have been the rule in the earlier cases, under the more recent decisions the complaint was sufficient in respect to the manner in which the alleged injury was received, and no reversible error was committed in ruling on said motion. See Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99;Kinmore v. Cresse, 53 Ind....