City of Whiting v. Grindle
| Decision Date | 01 March 1945 |
| Docket Number | 17296. |
| Citation | 59 N.E.2d 360,115 Ind.App. 407 |
| Parties | CITY OF WHITING v. GRINDLE. |
| Court | Indiana Appellate Court |
Appeal from Porter Circuit Court; Ira C. Tilton, Judge.
Action by Deryl Grindle against the City of Whiting to recover for injuries sustained when a sidewalk guardrail broke. Judgment for the plaintiff, and the defendant appeals.
Judgment reversed.
Gavit & Richardson, of Gary, and James McCarthy, of Whiting, for appellant.
Crumpacker & Friedrick and Stanley A. Tweedle, all of Hammond, for appellee.
Appellee brought this action against appellant for damages sustained as a result of an injury received when a sidewalk guard rail broke. The allegations of the complaint pertinent to a decision of the questions here presented, are, in substance as follows:
That appellee was a minor on the 10th day of September, 1935, the date of his injury; that he attained his majority on the 29th day of March, 1941; that on said 10th day of September, 1935 and for a long time prior thereto, appellant maintained a public street known as Atchison Avenue which runs in a northerly and southerly direction; that on said date the prior thereto appellant maintained a sidewalk on the east side of said street, and at said time Indianapolis Boulevard a public highway maintained by appellant running in a northwesterly and southeasterly direction, intersected said Atchison Avenue at an angle of approximately 45 degrees.
It is further averred that a certain building known as 1862 Indianapolis Boulevard fronted on Indianapolis Boulevard, the rear of said building facing Atchison Avenue; that between the rear of said building and the sidewalk on Atchison Avenue there existed at said time and for many years prior thereto, a depression or hole approximately three feet below said sidewalk and extending along the edge of said sidewalk for approximately seven feet; that appellant had erected and for many years prior to said date had maintained a railing in the sidewalk next to said hole; that said railing consisted of a horizontal pipe two inches in diameter and nine feet long supported by two vertical pipes two inches in diameter imbedded in the concrete of said sidewalk and of the approximate height of three feet; that said vertical pipes were joined with said horizontal pipe; that pedestrians often brushed against said railing or took hold of it and that by reason thereof said railing often was subjected to certain stresses and strains and that because of its presence immediately adjacent to said hole, a dangerous condition was created thereby; that the appellant knew or ought to have known of said condition but nevertheless appellant allowed said railing to be exposed to the elements for many years without repair and that during said time it was not covered with paint or other preservative and that by reason thereof said metal pipes became weak, rotten and rusted away; that appellant never replaced or repaired said rusted pipes.
It is then alleged that at about seven P.M. on said date appellee was proceeding along and upon said sidewalk, and as he came to the place of said hole and railing he took hold of the railing and leaned some of his weight against it, not knowing of its defective condition; that by reason of said railing being weak, rotten, rusty and defective it gave way, became loose or broke off at both ends at about the points where it was connected to the vertical pipes; that appellee was thrown violently to the sidewalk and then into the hole; that he was struck on the head and face, his skull was fractured and he suffered permanent painful injuries, nervous shock, etc.
It was then alleged that appellant, as custodian of its streets and sidewalks and appurtenances thereto, knew or ought to have known of the defective and dangerous condition of said railing, but that it negligently and carelessly failed to protect said railing with protective paint or other preservative; negligently and carelessly allowed said railing to become weak, rotten and rusty in the place where said pipe joins the upright pipe, and that it negligently and carelessly failed to replace said weak and defective railing; that said negligence and carelessness was the sole proximate cause of appellee's injuries; that as evidenced by a return receipt card made a part of the complaint, appellee, with his father as his next friend, notified appellant within sixty days of said injury of the hour and place of said injury, etc.
Appellant's answer admitted it maintained a guard rail on said walk. It then denied (1) appellee's claims of negligence; (2) his claims as to the extent of his injuries; (3) denied at the time of his injuries he was using the sidewalk as a traveler; (4) denied that statutory notice was given it within sixty days after the occurrence, and (5) denied knowledge or notice of any defect.
An affirmative paragraph of answer alleged the action was not commenced within two years after appellee's injuries.
Upon the issues thus joined, the cause was tried to a jury, verdict for $5,000 in favor of appellee. Judgment accordingly.
The assignment of error here is that the trial court erred in overruling appellant's motion for a new trial.
There are twenty-four specifications in the motion for a new trial. In view of the conclusion we have reached it is only necessary to consider one of them.
The first specification is that the verdict is not sustained by sufficient evidence. Under this specification appellant asserts its duty with respect to the...
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