City of Tipton v. Freeman

• Decision Date: 17 December 1909
• Docket Number: No. 6,493.,6,493.
• Parties: CITY OF TIPTON v. FREEMAN.
• Court: Indiana Appellate Court

45 Ind.App. 76

90 N.E. 101

CITY OF TIPTON

v.FREEMAN.

No. 6,493.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1909.

Appeal from Circuit Court, Tipton County; J. F. Elliott, Judge.

Action by Nancy Freeman against the City of Tipton. From a judgment for plaintiff, defendant appeals. Affirmed.

James M. Purvis, R. B. Beauchamp, and Bernard Moore, for appellant. Gifford & Gifford, for appellee.

WATSON, J.

This was an action for personal injuries received by the appellee upon a sidewalk within the corporate limits of the city of Tipton, on the 2d day of November, 1904. It is alleged: That the appellee was a citizen of Sharpsville, in the county of Tipton, and unacquainted with the sidewalks of the city of Tipton; that she received her injuries on the sidewalk situated on the north side of Jefferson street, between Independence and North Main streets, in front of the building owned by Mary A. Gleason, in said city; that said sidewalk at said point was constructed out of limestone more than two years prior to said accident, and was so constructed with a slant or decline from the north to the south side thereof, of about one inch to the foot, and by usage had become smooth and assumed a very highly polished surface; that by reason of the construction of said sidewalk, and the worn and polished condition of the stones thereof, appellee, in passing over said portion of said sidewalk, slipped and fell upon the same, and as a result of said fall received severe injuries, bruising her right side and arm, and breaking the femur in her right lower limb; that she was without fault, and her injuries were due to the fault and negligence of said defendant in permitting and suffering said sidewalk to be and remain in said dangerous condition for more than two years. The complaint was in three paragraphs, to each of which a separate demurrer was addressed and overruled. The cause was put at issue and trial had by the court without the intervention of a jury. The court found for the plaintiff and awarded her damages in the sum of $1,200. Motion for a new trial was overruled, and exceptions saved, and an appeal prayed for and granted.

The errors assigned are the overruling of the demurrers to each paragraph of the complaint, and the overruling of the motion for a new trial. The assignment of errors is separate as to the rulings on said demurrer, and the exception is a joint exception. The appellee earnestly insists that this presents no question, and in support of her contention cites Noonan v. Bell, 159 Ind. 329, 64 N. E. 909, and Southern Ind. R. R. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460. The Supreme Court, in the case of Whitesell v. Strickler, 167 Ind. 602-609, 78 N. E. 845, 119 Am. St. Rep. 524, considered the rulings in the two cases above referred to, disapproved, and overruled the former decisions.

The appellant insists that it did not know of the dangerous condition of the sidewalk, which was averred to have been in the then condition for two years or more prior to said accident. If it did not have actual knowledge of this condition, it could have known it by the exercise of ordinary care within the time averred, which it was required to do to the end that it might keep its streets and sidewalks in reasonably safe condition for use. Lyon v. City of Logansport, 9 Ind. App. 21, 35 N. E. 128;Columbia City v. Langohr, 20 Ind. App. 395, 50 N. E. 831;City of Indianapolis v. Mitchell, 27 Ind. App. 589, 61 N. E. 947;City v. Dick, 70 Ind. 65, 36 Am. Rep. 166;City v. Bitner, 100 Ind. 396;City v. Ballance, 123 Ind. 334, 24 N. E. 117;City v. Strassner, 124 Ind. 482, 25 N. E. 65;City of Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119. The plaintiff was lawfully using the sidewalk at the time she received her injuries. It was the duty of the city to keep the...