City of Terre Haute v. O'Neal

• Decision Date: 06 February 1920
• Docket Number: No. 10171.,10171.
• Citation: 72 Ind.App. 485,126 N.E. 26
• Parties: CITY OF TERRE HAUTE v. O'NEAL.
• Court: Indiana Appellate Court

72 Ind.App. 485

126 N.E. 26

CITY OF TERRE HAUTE

v.O'NEAL.

No. 10171.

Appellate Court of Indiana, Division No. 1.

Feb. 6, 1920.

Appeal from Circuit Court, Parke County; Henry Daniels, Judge.

Action by Edith O'Neal against the City of Terre Haute. From judgment for plaintiff, defendant appeals. Affirmed.

C. S. Batt and W. S. Danner, both of Terre Haute, for appellant.

J. Harvey Caldwell and A. Z. Thomas, both of Terre Haute, and Jacob S. White and Harold A. Henderson, both of Rockville, for appellee.

BATMAN, J.

This is an action by appellee against appellant to recover damages for personal injuries. The complaint is in a single paragraph, and alleges, in substance, among other things, that on April 30, 1915, and for a long time prior thereto, there was within the corporate limits of appellant, a public street known as South Ninth and One-Half street, running north and south, and extending from Wabash avenue to Popular street; that said street was at all times much traveled by the public generally; that on said date, and for nine months prior thereto, said street was paved with bricks, with a concrete sidewalk on each side thereof; that on said date and for many years prior thereto there was a saloon building on the southwest corner of the intersection of said street first named and said avenue, known as 813 Wabash avenue; that on said date and for nine months prior thereto there was a large coalhole three feet long and two feet wide, opening on the west sidewalk of said South Ninth and One-Half street, and extending down undersaid saloon building into the basement thereof; that on said date, and during the time last named prior thereto, appellant carelessly and negligently permitted said coalhole to be in said sidewalk, and to remain covered with loose boards; that said boards were about one inch thick, and lay loose on the surface of said sidewalk over said opening, unfastened, and unsecured; that during all of said time appellant carelessly and negligently failed and refused to cover or protect said coalhole, except as above stated, but left the same unguarded as aforesaid, without any lights or warning of any kind, although it had knowledge of the dangerous condition of said sidewalk for a sufficient time prior to said date, and the injuries hereinafter alleged, to have made the same safe; that about 9:30 o'clock in the evening of said date appellee was a pedestrian on said Ninth and One-Half street, and walked on the west sidewalk thereof toward said Wabash avenue, until she came to said coalhole; that at said time and place it was dark, and she could not and did not see said coalhole, and did not know it was in said sidewalk, or that said boards were thereon; that, by reason of said opening being carelessly and negligently left in the condition described, she then and there tripped on said boards and fell; that said boards were thereby knocked away and apart, and appellee was then and there and thereby thrown into said coalhole and seriously injured; that appellee received all of her said injuries wholly through the careless and negligent acts of appellant as aforesaid, and without any fault or negligence on her part; that on May 28, 1915, appellee served the following notice upon appellant and its clerk:

“I do hereby notify you that I, Edith O'Neal, received and sustained the following injuries on the west sidewalk on south Ninth and One-Half street, in the city of Terre Haute, Vigo county, Ind., at about 9:30 o'clock on or about the 30th day of April, 1915, to wit (describing them), and that I, Edith O'Neal, received and sustained all of said injuries on said date by reason of stumbling on and against loose boards covering a large coal chute leading down under the saloon property known as 813 Wabash avenue, in said city, and falling down therein. Edith O'Neal.”

Demand for damages in the sum of $5,000. Appellant's demurrer to the complaint was overruled, and the issues were then closed by an answer in general denial. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee for $1,000. Appellant filed a motion for a new trial, which was overruled, and now prosecutes this appeal on an assignment of errors, calling in question the action of the court in overruling its demurrer to the complaint, and in overruling its motion for a new trial.

[1][2][3] Appellant bases its contention that the court erred in overruling its demurrer to the complaint on the grounds that there is not only a failure to allege facts showing actionable negligence on its part, but also a failure to state facts which show that the alleged negligence was the proximate cause of appellee's injuries. In considering this contention we should bear in mind that, in construing a complaint, where a demurrer is interposed, all facts will be deemed stated that can be implied from the allegations made by fair and reasonable intendment, and facts so impliedly averred will be given the same force as if directly stated. Domestic Block Coal Co. v. De Armey (1913) 179 Ind. 592, 100 N. E. 675, 102 N. E. 99. We should also bear in mind that the law imposes on the cities of this state a duty to use reasonable care to keep their streets, including the sidewalks thereof, in a reasonably safe condition for travel, and that a failure to discharge this duty renders them liable for damages if a traveler thereon, while in the exercise of due care for his own safety, suffers injury by reason of such failure. It is alleged in the complaint that appellant permitted a large coalhole in one of its sidewalks to remain covered by loose boards about one inch thick, which lay on the surface of such sidewalk, without any light to disclose its presence, or guard to protect pedestrians from injury therefrom. Such a condition created a place of absolute danger, and this fact, when taken in connection with the alleged knowledge on the part of appellant, placed upon it the imperative duty of using reasonable care to make and keep such place safe. Facts are alleged which show that appellant negligently failed to discharge this duty, and that appellee was thereby injured. It is averred that such injuries were received wholly through the careless and negligent acts of appellant as aforesaid, and without any fault or negligence on the part of appellee. We are clearly of the opinion that the facts alleged show a legal duty owing by appellant to appellee; that appellant failed to discharge such duty; and that appellee was injured as a proximate result thereof. We therefore hold that the court did not err in overruling appellant's demurrer to the complaint.

[4][5] Appellant in its motion for a new trial has assigned 113 reasons therefor. As these reasons are based very largely on the alleged insufficiency of the notice served by appellee, in an attempt to comply with section 8962, Burns 1914, we will first consider that question. It will be observed by reference to said section that, in order to sustain an action such as this, a notice in writing “containing a brief general description of the time, place, cause, and nature” of the injury must have been served on certain designated officers within a specified time. The notice so served in the instant case is set out above, and was introduced in evidence. It is not contended that such notice is defective or insufficient on its face, but that, measured by the actual place where appellee was injured, as shown by the evidence, it constitutes such a wide variance as to render it ineffective as a compliance with the statute. In determining whether there is such variance, it is proper to resort to the evidence, not for the purpose of supplementing...