Dondono v. City of Indianapolis

• Decision Date: 13 October 1909
• Docket Number: No. 6,767.,6,767.
• Citation: 89 N.E. 421,44 Ind.App. 366
• Parties: DONDONO v. CITY OF INDIANAPOLIS.
• Court: Indiana Appellate Court

44 Ind.App. 366

89 N.E. 421

DONDONO

v.CITY OF INDIANAPOLIS.

No. 6,767.

Appellate Court of Indiana, Division No. 2.

Oct. 13, 1909.

Appeal from Circuit Court, Hendricks County; James L. Clark, Judge.

Action by Margaret Dondono against the City of Indianapolis. Judgment for defendant, and plaintiff appeals. Reversed, with instructions to grant a new trial.Frank M. Hay, George Young, and Otis E. Gulley, for appellant. F. E. Matson, Crate D. Bowen, and James D. Pierce, for appellee.

RABB, J.

This is an action by appellant to recover damages for personal injury alleged to have been sustained through the negligence of the city in failing to maintain a street crossing within its limits in a reasonably safe condition for public travel, and by reason of which the appellant, while attempting to pass over the crossing, was injured. After the evidence of the case was in, the court, on appellee's motion, gave the jury a peremptory instruction to return a verdict in favor of appellee, and the giving of this instruction presents the only question for our decision.

The evidence disclosed that the city had constructed a flagstone crossing for pedestrians over Concordia street, at its intersection with Harrison street, in the city; that there was a concrete sidewalk along the north side of Harrison street, which extended out to the curbstone on Concordia street; that there was a gutter along Concordia street, and a space five inches wide and four inches deep, intervening between the curbstone and the end of the flagstone crossing, for the passage of water in the gutter; that the sidewalk was built with a very slight fall to the south; that the surface of the curbstone was 1/2 inch lower than the surface of the sidewalk, and the surface of the stone crossing opposite the curbstone was 1 3/4 inches higher than the surface of the curbstone; that under one corner of one of the crossing stones, opposite the walk, and next to the gutter, a piece of stone had been broken out, forming a cavity about 1/2 inch from the surface of the stone, and extending back under the stone in a diagonal direction 3 or 4 inches, and that while appellant was passing along the north sidewalk, on Harrison street, approaching this crossing, she became frightened at two men fighting in the street nearby, and, in running to escape them, struck her toe in this cavity under the corner of the crossing stone, and was thereby caused to fall, and was injured. It appeared, also, in the evidence that the appellant had no knowledge of the condition of the crossing or of the defect complained of prior to her injury.

Unless the court can say from these facts, and all reasonable inferences that can be drawn therefrom most favorable to the appellant, either that the condition of the street at the place where the appellant met with the accident and which was its cause was not the result of negligence on the part of the city, or that the appellant was herself guilty of negligence proximately contributing to her injury, the peremptory instruction given by the court was erroneous. It is an act of negligence on the part of a city to fail to exercise reasonable care to keep its streets in a reasonably safe condition for ordinary public travel, and whether the existence of a particular defect in a public street constitutes negligence on the part of the city is a question for the jury, unless the court can say that the defect causing the injury was of such character that injury to one using the street for ordinary travel could not reasonably have been anticipated from its existence. Here the space between the crossing stones and the curbstone designed for the passage of water was not a defect. Gutters along public streets are essential for their proper drainage, and it may well be claimed that it was not reasonable to anticipate injury to one using the street for ordinary travel, and exercising ordinary care, in such use from the existence of the gutter, or that one would meet with an accident from the failure of the city to place a cover over it; or, in fact, that the crossing stone on one side of the gutter was 1 1/2 inches or 1 3/4 inches higher than the curb and pavement on the opposite side. But, when to this is added the fact that the corner of the crossing stone was...