Lyon v. City of Logansport

• Decision Date: 03 November 1893
• Docket Number: 707
• Parties: LYON v. THE CITY OF LOGANSPORT
• Court: Indiana Appellate Court

35 N.E. 128

9 Ind.App. 21

LYON v. THE CITY OF LOGANSPORT

No. 707

Court of Appeals of Indiana

November 3, 1893

Petition for a rehearing overruled Jan. 12, 1894.

From the Cass Circuit Court.

Judgment reversed, with instructions to the trial court to render judgment upon the verdict in favor of the appellant.

J. C Nelson and Q. A. Myers, for appellant.

T. J Tuley, for appellee.

GAVIN, C. J. Ross, J., does not participate.

OPINION

GAVIN, C. J.

The appellant brought suit to recover for injuries alleged to have been received by reason of appellee's negligence in maintaining a defective gutter-crossing in one of her streets.

There was a trial by jury and a special verdict.

The facts found by the jury are as follows:

That the defendant, the city of Logansport, is, and for many years has been, a municipal corporation organized under the general laws of the State of Indiana for the incorporation of cities that prior to the 18th day of January, 1892, the defendant had constructed on the west side of Third street, in said city, at its intersection with the north side of Market street, an iron gutter crossing; that said crossing was made of cast iron and was composed of three pieces, each three feet square, placed together, making a length of nine feet and a width of three feet, spanning the gutter, which gutter was one foot in depth; that the crossing pieces were about one inch in thickness and were perforated with diamond-shaped spaces, which were one and one-half inches in length, and one inch in width; that when originally put down there were creases cast diagonally in the crossing about one-fourth of an inch in depth and three-eights of an inch wide; that the crossings, as placed for the use of the public, were bowed upwards, or presented their convex surface upwards, and they were about one inch in thickness; that they were cambered one and one-half inches--that is, the arching was one and one-half inches in the three feet across the crossing, to which the thickness of the iron being added, made the center or arching and the thickness of the crossing itself two and one-half inches; that the east or street side of the crossing rested upon a curbing stone which adjoined a flag stone and bouldered crossing leading across Third street to the east obliquely; that the top of the curb stone was two inches above the surface of the street crossing at their junction; that there was a flange or shoulder cut in this stone to the depth of one-half an inch, in which the iron crossing rested on the east side of the gutter, Third street being a street running north and south, and Market street being a street running east and west in the city of Logansport, defendant; that the west end of the sidewalk edge of these three pieces of crossing rested upon a piece of timber two inches or more in thickness, laid laterally upon the sidewalk proper, making the sidewalk side of the gutter crossing, including the thickness of the grating, between three and four inches higher than the sidewalk and the grating or crossing slanted towards the west; that Market street, west of Third street, is wider than it is east of Third street, so that the street crossing leading across Third street from the east to the west side thereof ran obliquely to the west and north; that the said crossing was on a much traveled thoroughfare in a populous part of the city, and in a public place; that for one year or more prior to January 18th, 1892, the central portion of such said gutter crossing had become worn entirely smooth on the top, leaving the edges of the diamond shaped spaces smooth and rounded, and the creasings in the gutter crossings had become worn away, so that the surface of the crossing, except for a space of ten or twelve inches on the outer edges, had, by constant use, become as smooth as a polished piece of wood, and very smooth, slick and slippery, so that no safe foothold was presented by such crossing, except for a space of ten or twelve inches on each end; that the crossing was worn so smooth that numerous travelers, shod in the ordinary manner, were hindered in their attempts to pass over it, by reason of their inability to get hold upon it with their feet, which is necessary in walking forward to prevent them from slipping; that for many months prior to January 18th, 1892, said crossing had been in the slick, smooth and slippery condition, the same as when plaintiff fell, during which period numerous persons had slipped and fell upon said crossing during all seasons of the year; that the marshal of the city more than ten months prior to said date had seen at least one person fall upon said crossing; that a policeman of the city, defendant, had, during the same period, seen numerous persons slip, and one person fall, upon said crossing; that the line of travel across such iron gutter crossing, by reason of the oblique street crossing over Third street, was also oblique, and the gutter crossing was worn obliquely; and the gutter crossing was in the slick, smooth and slippery condition as aforesaid, and constructed as aforesaid more than ten months prior to and continuously up to and including January 18th, 1892; that on the 18th day of January, 1892, the plaintiff was a farmer, operating a farm, was married, 26 years of age, and in sound health and in possession of good eyesight and good mental faculties, and resided three miles from the city of Logansport; that on said day it had been snowing, and the temperature was fourteen degrees below freezing point at seven o'clock in the evening, and it was cool and chilly, and some snow had fallen upon this gutter crossing; that the plaintiff had, from time to time, passed over said gutter crossing; that he had been in the city of Logansport on an average of once a week for a number of years; that he had, at the time of the injury, no knowledge of the top of the crossing being smooth, slick and slippery, as herein found; that between seven and eight o'clock P. M., while in full possession of his mental faculties, he started, in company with three other persons, to go from the southeast corner of Third and Market streets to the opera house, situate on the west side of Third street, one square north of its intersection with Market street; that in so doing he could have gone one square north on the east side of Third street to the south side of Broadway street and thence west across Third street to the opera house, situate at the southwest intersection of Third and Broadway streets, in which event he would have had to go over one iron crossing of similar character to the one upon which he fell, and by the route he chose there was one iron crossing, the one on which he fell; that plaintiff and his companions crossed Market street towards the north on the east side of Third street and then turned west on the south side of Market street and started across Third street; that two of plainti...