Galbreath v. City of Logansport, 1171A226

• Decision Date: 03 March 1972
• Docket Number: No. 1171A226,1171A226
• Parties: Eva GALBREATH, Plaintiff-Appellant, v. CITY OF LOGANSPORT, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 578

279 N.E.2d 578

151 Ind.App. 291

Eva GALBREATH, Plaintiff-Appellant, v. CITY OF LOGANSPORT, Defendant-Appellee.

No. 1171A226.

Court of Appeals of Indiana, Third District.

March 3, 1972.

Floyd F. Cook, Cook & Cook, Kokomo, Kevin Hooley, Logansport, for plaintiff-appellant

Tom F. Hirschauer, Miller, Tolbert, Hirschauer & Wildman, Logansport, for defendant-appellee.

SHARP, Judge.

This appeal is from the granting of a Motion for Judgment on the Evidence against the Plaintiff-Appellant and in favor of the Defendant-Appellee at the close of the Plaintiff-Appellant's evidence in chief.

There are three matters to consider here. First, the scope and application of Trial Rule 50 must be examined. Secondly, we must consider whether the City had sufficient notice of the alleged defect. Third, we must consider the assertion that Plaintiff-Appellant was not looking where she was stepping and was guilty of contributory negligence as a matter of law.

TRIAL RULE 50

Plaintiff-Appellant's Motion for Judgment on the Evidence was made pursuant To Trial Rule 50 of the Indiana Rules of Civil Procedure. It is to be noted that while the language and procedure under our TR 50 is considerably changed from its model, Federal Rule 50 (Motion for a Directed Verdict), the spirit remains the same. It is, therefore, appropriate for this court to look to the Federal decisions for guidance in interpreting our rule. Probably the best overall review of the federal standards is contained in Sweargin v. Sears Roebuck & Company, 376 F.2d 637, 639 (10th Cir. 1967), where it is stated:

'The following standards have been established:

'A motion for judgment notwithstanding the verdict is actually merely a renewal of a previous motion for a directed verdict as to which the court has reserved decision. Thus the standard is the same for both motions as to when they should be granted. Motions of this kind raise the question whether there is or was any substantial evidence to take the case to the jury. Since, if granted, they deprive the party of a determination of the facts by a jury, they should be cautiously and sparingly granted. The court may not substitute its judgment on a question of fact for that of the jury, nor direct a verdict because the evidence decidedly preponderates for the moving party. * * *

The propriety of granting or denying a motion for a directed verdict is tested both in the trial court and on appeal by the same rule. The trial court must view the evidence and all inferences most favorably to the party against whom the motion is made. The reviewing court must do the same with respect to a judgment entered on a directed verdict or the denial of a motion for a directed verdict or a judgment entered notwithstanding the verdict. The decisions are many and the rule is the same both on appeal, and on the hearing of the motion in the trial court.' 2B Barron & Holzoff, Fed.Prac. and Proc., § 1075, at 375, 378 (Rules ed. 1961).

This court's most recent statement of the standard is:

'It seems hardly necessary to repeat the rule in this circuit that a trial judge may grant a directed verdict 'only when in his considered judgment it would have no foundation in fact, and the court in the exercise of its judicial discretion would be required to set it aside.' * * * Although the rule is simple, its application by a trial court 'is always perplexing and necessarily subject to the human equation.' In borderline cases it is difficult to exclude the personal equation, but a trial judge must recognize the possibility that, 'whatever might be his In United States for Use and Benefit of Weyerhaeuser Co. v. Bucon Construction Company, 430 F.2d 420, 423 (5th Cir. 1970), the court said:

own view, other fair-minded men might reasonably arrive at a contrary conclusion.' In passing on a motion for a directed verdict he must view the evidence in the light most favorable to the opposing party. Although a scintilla of evidence is not sufficient to justify submitting a case to the jury, a verdict may not be directed unless the evidence points all one way and is susceptible of no reasonable inferences which sustain the position of the party against whom the motion is made.' Christopherson v. Humphrey, 366 F.2d 323, 325--326 (10 Cir. 1966). See also Hardware Mutual Ins. Co. v. Lukken, 372 F.2d 8 (10 Cir. 1967).'

'In passing on a motion for a directed verdict, or for a judgment n.o.v., the court does not exercise discretion, but decides a pure question of law, that is, whether the evidence, considered in the light most favorable to the party against whom the motion is directed, affords substantial support for a verdict in his favor.' (footnote omitted)

Finally, we deem it appropriate to quote the lament expressed in Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 406 F.2d 653, 658 (1968), which reads as follows:

'So we conclude our review, but on a note of regret that the case must now be retried. We can see from the record that the trial judge studied appellee's motion for the directed verdict, gave careful attention to appellants' points in opposition and ruled as he read our Brodsky decision to require. But, as we have admonished, 'if there is room for a difference of opinion, the wise course is for the trial judge to allow the case to go to the jury.' The judge is then free, should he later determine that the verdict must fall, to enter judgment notwithstanding the verdict, and our action on appeal could not necessitate another trial.' (footnotes omitted)

The above quotations support and amplify the views of Professor Harvey concerning our Trial Rule 50. In Indiana Practice, Vol. 3, § 50.3, in part, it states:

'Insofar as standards to be applied by the trial court are concerned, when a motion for judgment on the evidence is made, the court must draw all fair and rational inferences from the evidence in favor of the parties opposing the motion, and to that party give every favorable intendment of the evidence to sustain a verdict for the nonmoving party.'

NOTICE OF DEFECT

In Gilson v. City of Anderson, 141 Ind.App. 180, 226 N.E.2d 921, 924 (1967), this court stated:

'In order to hold a municipality liable in such a case, it must be shown that the municipality had notice of the condition or defect which was the proximate cause of the injury complained of. See: City of Evansville v. Behme (1912), 49 Ind.App. 448, 97 N.E. 565.

Therefore, we must determine whether it could have had implied or constructive notice. As stated in the case of City of New Albany v. Slattery (1920), 72 Ind.App. 503, 508, 124 N.E. 755:

'In cases like the one before us, it is well settled in this state that the complaining party must not only prove that the alleged defective condition existed, but that the city had knowledge thereof, actual or constructive, long enough before the accident to repair the defect, and failed to do so. The rule of constructive knowledge applies only to such defects as might have been discovered by the exercise of ordinary care and diligence." (our emphasis)

A more pointed statement is found in City of Logansport v. Gammill, 128 Ind App. 53, 145 N.E.2d 908, 911 (1957), as follows:

'Actual notice to the City is not essential. It is sufficient if facts are pleaded from which notice may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known to and remedied by the City. The complaint is sufficient in this respect. City of Indianapolis v. Ray, supra (52 Ind.App. 388, 97 N.E. 795); Turner v. City of Indianapolis, 1884, 96 Ind. 51; City of Michigan City v. Phillips, 1904, 163 Ind. 449, 71 N.E. 205; Town of New Castle v. Grubbs, 1908, 171 Ind. 482, 86 N.E. 757; City of Indianapolis v. Murphy, 1883, 91 Ind. 382; Town of Lewisville v. Batson, 1902, 29 Ind.App. 21, 63 N.E. 861. In the case of Town of Lewisville v. Batson, supra, it was stated:

'. . . It is required to use active vigilance with reference to the condition of its streets, and if an obstruction has existed for such a length of time that, considering the circumstances of the case, the municipality or its officers might have obtained knowledge of it by the exercise of a reasonable degree of diligence and attention to the condition of the streets, knowledge of the obstruction will be implied.' With cases cited.'

Also, in City of Shelbyville v. Moton, 138 Ind.App. 460, 208 N.E.2d 705, 721 (1965), this court approved the following instruction:

'The Court instructs the jury that you may find notice to the defendant city of the condition of its street at the place in controversy, if you think it may be rightfully and reasonably inferred...