Marion County Construction Company v. Claycomb

• Court: Indiana Appellate Court
• Writing for the Court: ADAMS, P. J.
• Citation: Marion County Construction Company v. Claycomb, 98 N.E. 744, 52 Ind.App. 681 (Ind. App. 1912)
• Decision Date: 04 June 1912
• Docket Number: 7,649
• Parties: MARION COUNTY CONSTRUCTION COMPANY v. CLAYCOMB ET AL

98 N.E. 744

52 Ind.App. 681

MARION COUNTY CONSTRUCTION COMPANY v. CLAYCOMB ET AL

No. 7,649

Court of Appeals of Indiana

June 4, 1912

Rehearing denied January 28, 1913. Transfer denied March 6 1913.

From Clark Circuit Court; Harry C. Montgomery, Judge.

Action by Clara Belle Claycomb against the Marion County Construction Company and others. From a judgment for plaintiff, the defendant, Marion County Construction Company appeals.

Affirmed.

Robert W. McBride, for appellant.

Charles D. Kelso and George H. Voigt, for appellees.

OPINION

ADAMS, P. J.

Action by appellee Clara Belle Claycomb against appellant, appellee The New Albany Waterworks and the City of New Albany, to recover damages for personal injuries occasioned by the negligence of defendants in failing to guard an excavation in one of the public streets of New Albany, into which appellee fell and was injured. Before verdict the action was dismissed as to the City of New Albany.

It is charged in the complaint that at the time of the happening of the grievances complained of, The New Albany Waterworks was the owner of and engaged in operating a system of waterworks in the city of New Albany, and in supplying said city and its inhabitants with water; that a part of its system of mains and pipes was located in State street, one of the public streets of said city, and near the point where plaintiff was injured; that defendant the Marion County Construction Company, under a contract with the city of New Albany was at the time engaged in the construction of a general system of public storm and sanitary sewers in said city, and in the performance of its work excavated trenches in said State street near the point where plaintiff was injured; that this excavation intersected a service pipe of the water company, and, for the purpose of enabling defendant construction company to pursue its work, defendants dug a large hole in said street at a place used by the public, in order that they might cut off the water from such service pipe, to prevent the tearing up of the pipe by the construction company and flooding its trenches; that this hole became filled with water, and was negligently left by defendants uncovered and unguarded, and without any signal lights or barriers to warn the public of its existence and of the danger caused thereby; that defendants knew that this hole had been made in the street, and that it was unguarded, but that plaintiff had no knowledge of its existence; that the excavation was made in pursuance to the terms of a contract between defendant construction company and the city; that on the night of July 22, 1905, plaintiff, without fault on her part, and while exercising due care, when walking along said street, stepped into said excavation, and was thereby severely and permanently injured. Each defendant answered the complaint by general denial. Trial by jury; finding and verdict against appellant in favor of appellee Claycomb in the sum of $ 1,700, and in favor of appellee The New Albany Waterworks for costs. With its general verdict the jury returned answers to fifty interrogatories. Appellant's motion for judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, was overruled, and this constitutes the only error relied on for reversal.

It is a matter of statutory enactment that the special finding of facts controls the general verdict only when inconsistent therewith. § 573 Burns 1908, § 547 R. S. 1881. Where the general verdict and special findings can be reconciled with each other under any state of facts provable under the issues, the general verdict will stand. Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 304, 53 N.E. 235, 53 N.E. 225; Louisville, etc., R. Co. v. Summers (1892), 131 Ind. 241, 243, 30 N.E. 873; Shoner v. Pennsylvania Co. (1892), 130 Ind. 170, 181, 28 N.E. 616, 29 N.E. 775; Ohio, etc., R. Co. v. Trowbridge (1890), 126 Ind. 391, 398, 26 N.E. 64; Evansville, etc., R. Co. v. Marohn (1893), 6 Ind.App. 646, 653, 34 N.E. 27; Indianapolis Union R. Co. v. Neubacher (1896), 16 Ind.App. 21, 64, 43 N.E. 576, 44 N.E. 669; Southern R. Co. v. Utz (1913), 52 Ind.App. 270, 98 N.E. 375.

Negligence arises on the breach of a legal duty to use care, and where there is no duty there can be no negligence. Barrett v. Cleveland, etc., R. Co. (1911), 48 Ind.App. 668, 96 N.E. 490; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62, 68, 62 N.E. 694. It is the duty of a party who causes an excavation to be made in a public street to guard the same, and to use reasonable care to protect from injury, on account of such excavation, persons lawfully using such street. Indianapolis St. R. Co. v. James (1905), 35 Ind.App. 543, 74 N.E. 536.

The jury, by special interrogatories twenty-five to thirty-two inclusive, which are the only interrogatories set out in appellant's brief, found that the...