Dorsett v. City of Greencastle

• Decision Date: 09 April 1895
• Docket Number: 17,202
• Citation: 40 N.E. 131,141 Ind. 38
• Parties: Dorsett v. The City of Greencastle
• Court: Indiana Supreme Court

40 N.E. 131

141 Ind. 38

Dorsett v. The City of Greencastle

No. 17,202

Supreme Court of Indiana

April 9, 1895

From the Putnam Circuit Court.

The judgment is affirmed.

C. C Matson and J. W. Layne, for appellant.

T. F Moore, for appellee.

OPINION

Hackney, J.

The appellant sued the city for personal injuries sustained in falling from the lot of another into a street newly but properly graded to the depth of six feet below the surface of the lot. The alleged negligence of the city is in the failure of its contractor to put a barrier along the lot's line or to maintain a light or other warning of danger. It is alleged, however, that a plank sidewalk formerly maintained in the line of the street, had been placed upon its edge on the lot, at the side of the street excavation, and at an angle of forty-five degrees, slanting toward the street, and, that the appellant, believing the walk to be in its accustomed place, stepped upon it and "was thrown violently upon said sidewalk, and then slipped and fell into the excavation made for said street." It is not a possible theory of the action that the appellant was a traveler upon the street at the time of the occurrence; nor that the injury was caused by any obstruction in the street; nor that the excavation, though characterized as a pitfall, was improper or unauthorized. Nor was it alleged that the appellant was approaching the street to become a traveler upon it, and it did not appear that she was rightfully upon the premises.

The record discloses affirmatively that a demurrer was sustained to the original complaint, without an exception to the ruling, and that an amended complaint, in two paragraphs, was subsequently filed, to which paragraphs a demurrer was sustained and exception reserved. The assignment of error in this court is "that the court erred in sustaining the demurrer to the appellant's complaint."

It thus appears that the assignment of error is upon the ruling to which no exception was taken, and which was waived by the filing of an amended complaint, and it further appears that if the assignments were considered as relating to the ruling upon demurrer to the amended complaint, it is joint as to the paragraphs, and if either paragraph should be held insufficient both paragraphs would be carried down. Noe v. Roll, 134 Ind. 115, 33 N.E. 905; Ketcham v. Barbour, Exr., 102 Ind. 576, 26 N.E. 127.

The facts, as we have stated them,...