Noblesville Gas And Improvement Co. v. Loehr

• Decision Date: 27 May 1890
• Docket Number: 14,289
• Citation: 24 N.E. 579,124 Ind. 79
• Parties: The Noblesville Gas and Improvement Co. v. Loehr
• Court: Indiana Supreme Court

24 N.E. 579

124 Ind. 79

The Noblesville Gas and Improvement Co. v. Loehr

No. 14,289

Supreme Court of Indiana

May 27, 1890

From the Boone Circuit Court.

Judgment reversed, with directions to grant a new trial.

T. J Kane and T. P. Davis, for appellant.

R. R Stephenson and W. R. Fertig, for appellee.

OPINION

Coffey, J.

This was an action instituted by the appellee against the appellant for the purpose of recovering damages alleged to have been sustained by the appellee by reason of falling into a ditch constructed by the appellant in the streets of the city of Noblesville.

The complaint consists of two paragraphs.

The first alleges, substantially, that the appellant is a corporation, duly organized under the laws of the State of Indiana, and is engaged in the business of supplying natural gas to the citizens of Noblesville through mains sunk into the earth along the streets of said city; that in constructing its gas mains to the Evans Flouring Mill, on Polk street, in said city, said appellant dug a trench along said street two feet wide and four feet deep, and wrongfully, carelessly and negligently left the said trench open and exposed for a period of three weeks, with no guards, lights or other signals, to indicate to persons using said street the existence or location of said trench, or the danger of passing along or over that part of the said street; that, on the 1st day of May, 1887, one dark night while said trench was in the condition aforesaid, an alarm of fire was given from said mill, and the appellant, with many other citizens, was running to said mill for the purpose of assisting in the extinguishment of said fire, and the appellant fell into said trench, without any fault or negligence on his part, whereby he was injured.

The second paragraph of the complaint does not differ materially from the first, except in a description of the injuries received by the appellee and the extent of the same.

The court overruled a demurrer to each paragraph of the complaint, to which appellant excepted.

On issues formed the cause was tried by a jury, who, under instructions of the court, returned a special verdict, upon which the court rendered judgment for the appellee.

It is contended by the appellant that it affirmatively appears by the complaint that the appellee was guilty of contributory negligence in running on the street on a dark night, and that, therefore, the complaint is bad, and as a consequence the court erred in overruling its demurrer.

We can not say as a matter of law that the appellee, in running to a fire on the streets of the city of Noblesville, on a dark night, was guilty of negligence. In the absence of some notice to the contrary, he had the right to presume that said streets were in a reasonably safe condition. Jennings v. Van Schaick, 108 N.Y. 530, 15 N.E. 424; Shook v. City of Cohoes, 108 N.Y. 648, 15 N.E. 531; Stevens v. City of Logansport, 76 Ind. 498.

In our opinion the court did not err in overruling the demurrer to the complaint.

It is contended by the appellant that the special verdict of the jury is not sufficient to authorize a judgment in favor of the appellee as against the appellant.

The first contention is that it is not found by the verdict that the appellant constructed, or authorized the construction of, the trench into which the appellant fell.

So much of the special verdict as relates to this branch of the case is as follows:

"That in March or April, 1887, said defendant commenced negotiations with J. C. Evans to supply his mill and elevator, on Polk street in said city, with natural gas, by piping it under ground to his said mills, and pending such negotiations, and before a final contract had been made with him, a difference of opinion arose in the defendant's board of directors as to running the pipes to said mill and elevator before said contract had been signed by said Evans some of the directors wishing said pipes to be put in the trenches and run to said mill before the contract was made, but a majority of the board was opposed to this; and while this difference of opinion existed, and before the contract with Evans was completed,...