Fleming v. City of Anderson
| Decision Date | 28 November 1905 |
| Docket Number | 5,472 |
| Citation | 76 N.E. 266,39 Ind.App. 343 |
| Parties | FLEMING v. CITY OF ANDERSON |
| Court | Indiana Appellate Court |
Rehearing denied April 27, 1906. Transfer denied January 8 1907.
From Superior Court of Madison County; Henry C. Ryan, Judge
Action by Elizabeth Fleming against the City of Anderson. From a judgment for defendant, plaintiff appeals.
Affirmed.
Bagot & Bagot, for appellant.
Bartlett H. Campbell, for appellee.
Elizabeth Fleming, the appellant, brought her action in March, 1900, against the appellee, to recover damages for a personal injury caused by appellant's falling into an open ditch across a sidewalk along which she was walking on the night of October 14, 1898. Such proceedings having been had that plaintiff recovered judgment, the defendant appealed to the Supreme Court. The judgment in favor of the plaintiff was reversed. See City of Anderson v. Fleming (1903), 160 Ind. 597, 66 L. R. A. 119, 67 N.E. 443. The opinion of the Supreme Court on that appeal, on the return of the cause to the court below, was spread of record, and is included in the transcript before us. On the return of the cause to the trial court an amended complaint was filed, October 6, 1903. To this amended complaint the appellee answered in a number of paragraphs, in one of which was pleaded the statute of limitations. If it can properly be said that in the amended complaint the appellant stated a cause of action different from that stated in the original complaint, the judgment herein must be sustained.
In general, an amendment of a complaint relates to the commencement of the action; but, if the amendment sets up a claim or a title not previously asserted, against which the statutory period of limitation has run, the statute of limitations may be invoked successfully. Lagow v. Neilson (1858), 10 Ind. 183; Hawthorn v. State, ex rel. (1877), 57 Ind. 286; School Town of Monticello v. Grant (1885), 104 Ind. 168, 1 N.E. 302; Fleenor v. Taggart (1888), 116 Ind. 189; Chicago, etc., R. Co. v. Bills (1889), 118 Ind. 221, 20 N.E. 775; Blake v. Minkner (1894), 136 Ind. 418, 36 N.E. 246.
The nature of the cause of action stated in the original complaint is shown in the opinion of the Supreme Court, before mentioned, rendered on the former appeal. That complaint is also before us as part of the answer setting up the statute of limitation, and in the evidence herein. In that pleading it was alleged, amongst other things, that prior to the time of the appellant's injury, October 14, 1898, the city made and entered into a contract with Charles L. Henry for the improvement of the street in question (Eleventh street) and the sidewalks thereof on each side of the same, by grading, leveling and paving the street, and grading, leveling and constructing a cement sidewalk on each side thereof, and by placing curbstones along the sides of the street and along the sides of intersecting streets and alleys to the property line on each side of the street; that by the terms of the contract the parties thereto agreed that the improvement should be made by Henry under the supervision of the city civil engineer, and that the work should be carried on at the times and places as directed by said engineer, and that during the construction of the improvement Henry should maintain the sidewalks along the street safe for travel by the general public, and should and would maintain red lights, and, if necessary, watchers at all places of danger along the street; that afterward, October 14, 1898, the agents and employes of Henry, in the construction of the improvement, dug and made a deep excavation across the sidewalk along the south side of the street, at a place where the street is intersected on its south side by a certain alley described; that this excavation extended entirely across the sidewalk, and was two and one-half feet deep and one foot wide; that the appellee, with full knowledge and notice that this excavation was so made across the sidewalk, carelessly and negligently caused, allowed, and permitted the excavation to be and remain in and across the sidewalk in and through the darkness of the night of that day, without any guard, signal, or warning of danger to the traveling public; that it was a public sidewalk in the city, used as a footway by the general public, and was much traveled by the public; that the excavation across it was of such a character as to render the sidewalk dangerous and unsafe for travel, and such as greatly to endanger the life, limbs, and safety of persons traveling upon the sidewalk in the night-time; that said night was dark, and the appellant was traveling along the sidewalk on foot and in the ordinary way, without any notice or knowledge of the excavation, and was in the use and exercise of ordinary care for her own safety, and was unable to see or observe the excavation by reason of the darkness of the night, and the carelessness and negligence of the appellee in failing to guard or protect the same, or to place any light, signal, or warning of any kind at or in the locality thereof, or causing the same to be done; that while she was so walking she fell into the excavation, whereby she was injured, etc.--stating her injuries--wholly by reason of the carelessness and negligence of the appellee as aforesaid, etc.
In the amended complaint there was no mention of Henry or any contractor or third person; but it was alleged that ...
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