Graves v. Thomas

• Decision Date: 10 May 1884
• Docket Number: 11,476
• Citation: 95 Ind. 361
• Parties: Graves v. Thomas
• Court: Indiana Supreme Court

95 Ind. 361

Graves v. Thomas

No. 11,476

Supreme Court of Indiana

May 10, 1884

From the Superior Court of Vigo County.

N. G Buff and I. N. Pierce, for appellant.

C. F McNutt, J. G. McNutt and S. R. Hamell, for appellee.

OPINION

Black C.

The appellee, Amelia Thomas, sued the appellant, Emeline Graves, and the trial of an issue formed by a denial of the complaint resulted in a verdict for the plaintiff for $ 125. A motion made by the defendant for judgment on the answers of the jury to special interrogatories, notwithstanding the general verdict, and her motion for a new trial were overruled, and judgment was rendered on the verdict. The rulings on these motions are assigned as errors.

Following the general verdict in the record are certain interrogatories and answers thereto signed by the foreman; but it is not affirmatively shown anywhere in the record that the court submitted the interrogatories to the jury, or that either party requested the court to do so. Therefore, this court can not inquire whether or not these answers were inconsistent with the general verdict. R. S. 1881, section 546; Cleveland, etc., R. W. Co. v. Bowen, 70 Ind. 478; Hervey v. Parry, 82 Ind. 263; Watkins v. Pickering, 92 Ind. 332.

In her motion for a new trial, the defendant, with other reasons, assigned that the verdict was not sustained by sufficient evidence, and that the verdict was contrary to law.

The action was for the recovery of damages for injuries suffered by the plaintiff from falling into an excavation for a cellar recently made by the defendant upon a lot adjoining a street and sidewalk in the city of Terre Haute, the defendant having negligently failed to guard said excavation, or to place any signal at or near it to warn pedestrians passing along said sidewalk, it being alleged that while the excavation was in such condition the plaintiff was walking along said sidewalk, and, without any fault or negligence on her part, fell into said excavation.

The evidence showed that the defendant's lot was bordered on the west by the street and sidewalk, and on the north by a vacant lot; that the excavation, made about one week before the accident, preparatory to the building of a storehouse, was eight feet deep, thirty feet long, extending to the sidewalk, and eighteen feet wide, the north line thereof being about five feet from the north line of defendant's lot; that there were two paths, one being along the sidewalk proper, and the other diverging from it and returning to it, passing over said vacant lot on the north of defendant's lot and over the defendant's lot, the latter path, which was about forty feet long, being upon higher ground than the path along the sidewalk proper; that about eight or nine o'clock on a dark and rainy evening, the plaintiff, alone and without a lantern, was walking southward along said street, on her way to visit a sick friend; that she took the upper path, and, pursuing it, fell into the cellar on the north side thereof, about ten feet from the west end of the cellar, and was injured by the fall. The people generally passed over these lots in wet or muddy weather, instead of passing over the lower path, and they had done so for about eight years. The defendant had owned her said lot about six months. There was a ridge a foot or two feet high, made of earth thrown out, on the north side of the cellar, and two or three feet from it, but there was no guard or protection of any kind on that side of the cellar. The plaintiff had moved from another part of the city into the neighborhood, two squares away from the cellar, three days before the accident. About six years before, she was well acquainted with the premises, and passed along said street and over the same place where she fell. About one year before the accident she passed along the same place, but she had not seen it afterward until the night of the accident, and she did not know that a building was being pet up on the defendant's lot.

In Young v. Harvey, 16 Ind. 314, in discussing the question whether one who had dug and had left exposed a pit on his...