Glantz v. City of South Bend

• Decision Date: 24 April 1886
• Citation: 6 N.E. 632,106 Ind. 305
• Parties: Glantz v. City of South Bend.
• Court: Indiana Supreme Court

106 Ind. 305

6 N.E. 632

Glantz

v.City of South Bend.

Supreme Court of Indiana.

April 24, 1886.

Appeal from St. Joseph circuit court.

Elliott, J., dissents.

A. J. Egbert and T. E. Howard, for appellant.

John Haggerty and Lucius Hubbard, for appellee.

Howk, J.

This was a suit by appellant, Mary Glantz, against appellee to recover damages for personal injuries received by her while traveling on Washington street, within such city, and using all due care, which street appellee was bound to keep in repair, but had negligently suffered the same to be out of repair. Appellee answered by a general denial of appellant's complaint. The issues joined were tried by a jury, and, at appellee's request, the jury returned into court their special verdict, on all the issues in the cause, as follows:

“We, the jury, find that on April 5, 1885, at 7 o'clock p. m., the plaintiff was walking on the north side of Washington street, in the city of South Bend, on the sidewalk. At the crossing of La Porte avenue, on Washington street, were planks, 5 in number, 1 foot wide, and 2 inches thick, laid flat, and side by side, to cross La Porte avenue. West of this cross-walk was a cement walk for 300 feet. From the cement walk, to pass upon the plank crossing of La Porte avenue, was a rise of 2 inches on the north side, 2 1/4 inches in the center, and 2 1/2 inches on the south side, of such cross-walk. As the plaintiff, Mary Glantz, was walking east, it being dark, she stumbled on the end of the plank cross-walk and fell. The planks were in good order, and firm in place. They were not beveled at the ends, but cut square off. She was bruised by the fall on the forehead, nose, and knees, and her back was sprained. She was confined to her bed by her injuries for four weeks. She was then discharged by her physician. She had then recovered in all respects, except that she still was weak in the back, from which she has not yet fully recovered. We find that she had incurred liability to her physician and nurse for $30; that she has suffered loss of time in the sum of $45; and that she suffered pain and inconvenience to her injury in the further sum of $25. We find that this inequality of level, between the cement walk and plank cross-walk, has existed since the fall of 1884.”

Appellant's motion for a venire de novo having been overruled, the court adjudged that she take nothing by her suit, and that appellee recover of her its costs. Her motion for a new trial having been overruled by the court, she has appealed from the judgment below to this court.

Errors are assigned here by appellant which call in question the overruling (1) of her motion for a venire de novo; and (2) of her motion for a new trial.

1. It is earnestly insisted, on behalf of the appellant, that her motion for a venire de novo ought to have been granted. This claim is founded upon the theory that the special verdict of the jury is so ill or defective that no valid judgment can be rendered thereon in favor of either party. “A special verdict is that by which the jury find the facts only, leaving the judgment thereon to the court.” Section 545, Rev. St. 1881. In section 546, Rev. St. 1881, in relation to special verdicts, it is further provided as follows:

“In all actions, the jury, unless otherwise directed by the court, may in their discretion render a general or special verdict; but the court shall, at the request of either party, direct them to give a special verdict upon all or any of the issues.”

These provisions of the Code of 1881 are substantially re-enactments of similar provisions of sections 335 and 336 of the Civil Code of 1852; so that it may be said they have constituted a part of our Code of Civil Practice for nearly 33 years. Under these provisions of the Civil Code it was formerly held by this court, as late at least as its November term, 1876, that a special verdict must be certain, and responsive as to all the material issues of the cause,-a positive finding either affirming or denying each material allegation of the pleadings therein; otherwise such verdict should be set aside, and a venire de novo granted, on motion therefor. Bosseker v. Cramer, 18 Ind. 44;Jenkins v. Parkhill, 25 Ind. 473;Housworth v. Bloomhuff, 54 Ind. 487. In Graham v. State, 66 Ind. 386, the court, at its May term, 1879, modified the doctrine of its prior decisions, and held substantially that, under the provisions above quoted of our Civil Code, only the facts which are proved upon the trial of a cause are to be found in the special verdict; and if the facts found leave some issues in the case undetermined, those issues must be regarded as not proved by the party having the burden of proof; and in such case the special verdict is not objectionable because it does not pass upon all of the issues, and affords no sufficient cause for a venire de novo. The doctrine of the case last cited has since been approved and followed by this court in all similar cases. Ex parte Walls, 73 Ind. 95;Stumph v. Bauer, 76 Ind. 157;Nitche v. Earle, 88 Ind. 375;Knox v. Trafalet, 94 Ind. 346;Travelers' Ins. Co. v. Patten, 98 Ind. 209;Quick v. Brenner, 101 Ind. 230.

Approving and following, as we think we must, the more recent rule of practice in relation to special verdicts, we must hold, in the case under consideration, that the trial court did not err in overruling appellant's motion for a venire de novo; for here the only material fact in issue upon which the jury failed to find in their special verdict was the fact alleged by appellant, and denied by appellee, that the former was “using all due care” at the time she received the personal injuries of which she complains. The burden was on her to establish this fact by a fair...