Gilson v. City of Anderson

• Decision Date: 12 June 1967
• Docket Number: No. 2,No. 20630,20630,2
• Parties: Mildred L. GILSON, Appellant, v. CITY OF ANDERSON, Madison County, Indiana, Appellee
• Court: Indiana Appellate Court

Page 921

226 N.E.2d 921

141 Ind.App. 180

Mildred L. GILSON, Appellant, v. CITY OF ANDERSON, Madison County, Indiana, Appellee.

No. 20630.

Appellate Court of Indiana, Division No. 2.

June 12, 1967.

Schrenker & Anderson, Anderson, Harold J. Anderson, Anderson, of counsel, for appellant.

Busby, Austin, Cooper & Farr, Anderson, John A. Farr, Jr., Anderson, of counsel for appellee.

BIERLY, Judge.

This negligence action was commenced in the Madison Circuit Court by appellant for damages for personal injuries alleged to have been sustained by her as a result of a fall on an alleged defective sidewalk in the City of Anderson, on September 19, 1965. The allegations of negligence were that the city had allowed the sidewalk in question to remain out of repair, in that the sidewalk and curb had become broken, decayed, weak and unsafe for use by pedestrians.

Issues were formed by the amended complaint and answer of denial by defendant-appellee.

Trial was had by jury which returned a verdict for the defendant, City of Anderson. Consistent judgment was decreed by the court.

Appellant then filed her motion for a new trial, the overruling of which constitutes the sole assignment of error in this appeal. Said motion is as follows:

'1. Misconduct of the jury in that one of its members, Harold C. Allen, foreman, had conversations with one of the defendant's witnesses during times when the Court was at recess during the course of the trial, said witness, Ruth Ann Lutgenau, being an employee of the City Street Department at the time of and prior to the accident as alleged in the plaintiff's complaint.

'2. That the verdict is not sustained by sufficient evidence or is contrary to law.

'3. The Court erred in admitting in evidence over the objection of the plaintiff certain evidence of defendant's witness, Earl Toombs, pertaining to an independent contractor, Vogel Construction Company, when there were no allegations pleaded in the complaint as to any independent contractor and the defendant's answer of denial to the plaintiff's complaint and without the defendant alleging or raising the issue of an independent contractor by an affirmative answer.

'4. The Court erred in excluding the following evidence offered by the plaintiff, Mildred L. Gilson, as to her conversation with the defendant's Doctor Roger R. Reed as to the nature and extent of her recovery from a broken right leg.

'5. The Court erred in giving certain instructions offered by the defendant and objected to by the plaintiff and being defendant's Instructions Numbered 5, 10, 13, 15, 20 and 25.

'6. The Court erred in refusing to give plaintiff's instruction Numbered 15.'

In connection with appellant's first specification, it affirmatively appears from the record that appellant's attorney was aware of the alleged misconduct of a juror, but failed to raise an objection before the case was submitted to the jury. The law in this regard is stated quite well in the case of Siebeking et al. v. Ford (1954), 125 Ind.App. 365, 122 N.E.2d 880, 52 A.L.R.2d 177, wherein the Court held:

'The law is well settled that in matters of misconduct that if the party, or his attorneys, know of the misconduct at the time, or learn of it before the verdict and make no objection because of it, they cannot afterwards make it the grounds for a new trial.'

Thus we find no error in regard to this first specification.

Appellant's specification relative to the insufficiency of the evidence to support the verdict, presents no question since this judgment is negative. That is, since appellant had the burden of proof below, and the verdict was negative to her, she is unable to legally challenge the insufficiency of the evidence to sustain the verdict. See Board of Zoning Appeals of Town of Carmel v. Parsons (1964), 136 Ind.App. 520, 202 N.E.2d 589.

However, appellant may assert that the verdict was contrary to law. In determining whether a verdict is contrary to law, the rule is stated concisely in the case of Hinds, Executor, etc. v. McNair, et al (1956), 235 Ind. 34, 41, 129 N.E.2d 553, 558, to be that:

'If the undisputed evidence entitles the one who has the burden of proof to a verdict which has been denied him, such verdict is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with all reasonable inferences which may be drawn therefrom.

"It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law."

We cannot say, as a matter of law, that there was no evidence upon which the jury could have rested their verdict. The evidence discloses that the appellant was walking along a sidewalk on a street which was undergoing repairs. She was quite familiar with the area. It was late in the evening and it was quite dark. The sidewalk was generally in a poor condition, being cracked and slanted. As appellant stepped upon the curbing at an alley, the curb gave way and broke, causing her to fall and sustain injuries.

The evidence most favorable to the appellee proved that it had no actual notice of the condition of the curbing at the alley.

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.'

In other words, if the defect is latent, violation of ordinary care and diligence cannot be found to exist.

Evidence of probative value showed that the sidewalk was in bad condition. However, the sidewalk was not the proximate cause of appellant's injuries. It was the curb that proximately caused the injury. From the testimony, it appears that any defect in the curb in question was latent. By the appellant's own testimony it appeared latent. She testified that the curb 'broke with me.' Counsel for the appellee further questioned her in regard to the curb as follows:

'Q. And you indicated to me at that time, I believe, Mrs. Gilson, that you had never seen anything about this curb that would indicate to you that it was in a weakened condition before you fell. Isn't this correct?

'A. That's right. It sloped down and it was cracked.

'Q. But other than that, from all appearances at least, it appeared to be solid. Isn't this correct?

'A. Yes, it seemed to hold people.

'Q. Mrs. Gilson, I believe you also indicated to me that you did not feel that it was anything about the sidewalk slab that caused you to fall, but rather that it was the curbing. Is this correct?

'A. It was the curb, yes.'

Thus, we are of the opinion that there was sufficient conflict in the evidence upon which the verdict could rest, consequently, we find no error in this regard.

Appellant's next specification concerns the admissibility of certain testimony. After reviewing the pertinent portions of the transcript, we find no error in the appellant's contentions. The only objections offered to the trial court were general objections which would not present sufficient grounds for exclusion.

The exclusion, by the trial court, of certain testimony concerning a conversation between appellant and her doctor at the time of his examination, likewise presents no question, for in the light of the verdict, any error would be harmless.

We now must review that specification which alleges error in giving of defendant's Instructions Nos. 5, 10, 13, 15, 20, and 25.

The record is completely devoid of any objection to Instruction No. 5, therefore, it presents no question.

Instruction No. 10 instructed the jury that if they found that the accident was caused by a condition of things which the City could neither foresee nor provide against, they should find for the City.

Appellant objected,

'* * * for the reason that said instruction is not a correct statement of the law as applies to this case, as there was no evidence inferred as to the happening of any material allegation that the defendant should not foresee or provide against.'

This objection seems superficial and lacks sufficient substance or clarity to justify our favorable consideration. Therefore, we find no error in the giving of this instruction.

Instruction No. 13 concerned itself with the necessity of knowledge of the defect, by the City, either actual or constructive. Appellant cites one case in support of its argument under this instruction. However, we are of the opinion that the case cited has no bearing on the instruction as it was objected to at the trial, thus, having failed to support the argument with authority, as required by Supreme Court Rule 2--17, we find no issue presented for our determination. Under Rule 2--17(h), appellant is required to state,

'* * * the basis of the objection to the ruling complained of, exhibiting clearly the points of fact and law being presented, and how they are applicable, citing the authorities and statutes relied upon * * *.' (Emphasis supplied).

Instruction No. 15, concerns itself with the amount of damages, hence any error, if one exists, would be harmless, in view of the verdict.

Instruction No. 20 is as follows:

'If you find from the evidence that the Plaintiff, Mildred L....