Mitchell v. City

• Decision Date: 04 June 1907
• Docket Number: No. 5,986.,5,986.
• Citation: 81 N.E. 594
• Parties: MITCHELL v. TELL CITY.
• Court: Indiana Appellate Court

81 N.E. 594

MITCHELL

v.TELL CITY.

No. 5,986.¹

Appellate Court of Indiana, Division No. 2.

June 4, 1907.

Appeal from Circuit Court, Dubois County; Wm. A. Traylor, Judge pro tem.

Action by Fannie B. Mitchell against the city of Tell City. From a judgment for defendant, plaintiff appeals. Affirmed.

Cox & Hunter, John H. Ewing, and Sol. H. Esarey, for appellant. Patrick & Minor, for appellee.

RABB, J.

Appellant sued appellee to recover damages for injuries claimed to have been sustained by appellant through the negligence of appellee. There was a jury trial, resulting in a general verdict in favor of the appellant, with answers to interrogatories submitted by the court to the jury, and returned with their general verdict. Appellant's motion for a judgment in her favor on the general verdict was overruled, and exception reserved, and judgment rendered in favor of the appellee on the answers to the interrogatories, to which appellant excepted, and these rulings of the court are the only questions presented here.

The complaint avers that Jefferson street and Thirteenth street in the appellee city intersect each other; that they are graded and used for general purposes of travel; that sidewalks are thrown up on the sides for the use of pedestrians; that the appellee cut a deep trench along the side of the sidewalk, and made it perpendicular to the level of the sidewalk and street, and at said intersection the appellee cut a trench or ditch to lead away the water falling upon the streets, to the depth of from 1 foot to 18 inches; that the walls of said trench were left perpendicular; that the trench was about two feet wide; that the appellee for many months prior to the appellant's injuries maintained an electric light at the intersection of said streets; that from its light travelers could see the dangerous character of said ditch, but that for several weeks prior to the appellant's injuries appellee neglected to keep any light at such intersection; “that defendant had cut and maintained said trench or ditch for several months, and had negligently allowed the same to be and remain without any signal or warning of any kind to travelers or passersby for several weeks, to the knowledge of the officers of the city; that on the 17th day of May, 1903, while the appellant was carefully proceeding along said sidewalk of Jefferson street, in the darkness of the night, and no lights at said crossing, she stepped off the sidewalk into the ditch and was injured.” The answers to the interrogatories show that the appellant lived within one square of where she was injured, and had resided there for 2 1/2 months prior to that time; that she had passed the place where she was injured 25 or 30 times, and that she had traveled over the same, both in the day time and night time, and that it was in a sparsely settled neighborhood; that she was aware of the dangerous condition of the crossing on the evening of her injury. The facts, therefore, to be fairly extracted from the complaint and answers to interrogatories taken together are that the city, for the purpose of draining its streets, maintained a trench or ditch along the side of the sidewalks of Jefferson street, and at the intersection of this street with Thirteenth street, 20 inches deep and two feet wide, in a sparsely settled neighborhood in said city; that they failed to maintain a light by which pedestrians traveling along the sidewalk could see the ditch and avoid the same at night; that the appellant, with a full knowledge of all the circumstances, walking along the sidewalk on a dark night, and on that account unable to see the ditch, stepped off the sidewalk into the ditch and was injured. Do these facts show a liability on the part of the city to the appellant? If they do, judgment should have been rendered in her favor upon the general verdict. If not, the action of the court below was right.

All facts averred in the complaint that are not contradicted by the answers to the interrogatories are established by the general verdict, and all reasonable inferences that can be drawn from the facts averred in the complaint will be indulged in support of the general verdict; but no fact outside of the issues as presented by the complaint, and no unreasonable presumptions or inferences are to be indulged in support of the same. All parsons are presumed to be in possession of their senses, and it will not be presumed or inferred in support of the general verdict that the appellant was either blind or of defective eyesight, hearing, or understanding, in the absence of an averment in...