Rogers v. City of Bloomington

• Court: Indiana Appellate Court
• Writing for the Court: WILEY, J.
• Citation: Rogers v. City of Bloomington, 52 N.E. 242, 22 Ind. App. 601 (Ind. App. 1898)
• Decision Date: 16 December 1898
• Docket Number: 2,685
• Parties: ROGERS v. CITY OF BLOOMINGTON

52 N.E. 242

22 Ind.App. 601

ROGERS v. CITY OF BLOOMINGTON

No. 2,685

Court of Appeals of Indiana

December 16, 1898

Rehearing denied June 29, 1899.

From the Orange Circuit Court.

Affirmed.

John R East, Bayless Harvey, Frank M. Cummings and Robert G. Miller for appellant.

H. C. Duncan and I. C. Batman, for appellee.

WILEY J. Black, C. J., and Comstock, J., dissent.

OPINION

WILEY, J.

Appellant sued appellee to recover damages resulting to her by falling into a ditch in one of the public streets of appellee city. The negligence charged in the complaint against appellee was that it caused to be constructed a deep ditch in Madison street, in said city, and maintained the same in a dangerous and unsafe condition, in that it failed to place any guard-rails on either side thereof, and failed to keep any lights, or other danger signals, in the vicinity, as warnings, etc.; and that appellee, long prior to the time appellant received her injuries, knew of the unsafe and dangerous condition of said street on account of said ditch. The complaint avers that appellant, while walking along said street at 9 o'clock at night, "without any knowledge and without being able to see the location of said ditch, and without any fault on her part whatever, and without the aid of any lights or guard-rails, she stepped, and fell to the bottom of said ditch," to her injury, etc.

There was a trial by jury, a general verdict for appellant, and with the general verdict the jury answered and returned certain interrogatories submitted to them by the court. Each party moved the court for judgment on the answers to the interrogatories, notwithstanding the general verdict. Appellee's motion was sustained, and appellant's motion overruled, and such ruling presents the sole question for decision, under the assignment of error. This is the third appeal in this case. City of Bloomington v. Rogers, 9 Ind.App. 230, 36 N.E. 439; City of Bloomington v. Rogers, 13 Ind.App. 121, 41 N.E. 395. In the former appeals the judgment in each instance rested upon a special verdict, and a reversal was ordered because the special verdicts did not show that appellee was free from negligence contributing to her injury. By the special interrogatories in this appeal the same question is presented, and for that reason it is necessary for us to show, in this opinion, the interrogatories and answers submitted to and returned by the jury. For brevity, we will do this in narrative form, and the facts established by the interrogatories and answers are the following: That appellant received her injuries by falling into a ditch on the west side of Madison street in the city of Bloomington, between Third and Fourth streets; said ditch was about twelve feet wide and about six feet deep, walled with stone, with a solid stone bottom, was without guard-rails or other barriers, and without danger lights or signals, or lights of any kind, to show its location; that said ditch was about two feet from, and parallel to, the space on the west side of the street, intended for a sidewalk; that said sidewalk was at the time being improved by putting crushed stone and cinders on it, preparatory to paving the same with brick; that such sidewalk space extended from the southeast corner of appellant's lot north past the front thereof, to where it crossed an alley 132 feet north of the northeast corner of said lot; that said ditch extended south from said alley about ninety feet; that, on the night appellant was injured, said ditch was dangerous to persons passing near the same at night, without any guard-rails or signal lights; that appellant's home was near the southeast corner of her lot, just north of Third street and west of Madison street; that at the time appellant fell into said ditch, and prior thereto, she knew of the condition of the street, the location of the ditch, and its condition as to guard-rails, danger signals, and lights; that on the night of her injury, when it was dark, without the aid of any light, she undertook to pass along said sidewalk space on the west side of said ditch, going southward to her home; and, in so doing, fell into the ditch, whereby she was injured. The following interrogatory and answer we quote in full: "13th. On said night was there not a route by which plaintiff could have reached her home, known to her, on which there was a good sidewalk, by going to Third street at some point east of Madison street, and then going west on the north side of Third street to her home?" Answer. "There was proof of a good sidewalk from southeast corner of the public square south to Third street, and along the same to the southeast corner of plaintiff's lot; but no proof that she knew the whole route." That appellant received her injuries about 9 o'clock at night; that, just previous to receiving her injuries appellant was standing at an open window talking to one Brogan, looking into a room in which there was a light burning; that at the time she fell into the ditch, she could not see its exact location; that immediately before falling into the ditch, she did not know its exact location; that at the time of her fall, she did not know its exact location. Interrogatory twenty, and answer thereto, are as follows: "20th. What effort, if any, did the plaintiff make to ascertain the location of said ditch while approaching the same, and before she fell into it?" Answer. "Feeling with her feet and searching with her eyes." That on the night appellant was injured, and while she was on her way home, she could not see the exact location of the ditch, and that as she proceeded home she did not find the exact location of the ditch, prior to falling into it. It was upon these facts found, specially, that the court below rendered judgment for appellee, notwithstanding the general verdict in favor of appellant. By the general verdict, there was a finding for appellant on every material issue necessary to a recovery and in the absence of the evidence, or any question of error or irregularity at the trial, such general verdict should be upheld, unless the interrogatories and answers, or some of them, are so irreconcilably in conflict with the general verdict that they can not possibly stand together. The court will indulge every reasonable presumption in favor of the general verdict. McCallister v. Mount, 73 Ind. 559; Block v. Haseltine, 3 Ind.App. 491, 29 N.E. 937; Vance v. City of Franklin, 4 Ind.App. 515, 30 N.E. 149; Evansville, etc., R. Co. v. Gilmore, 1 Ind.App. 468, 27 N.E. 992; Louisville, etc., R. Co. v. Creek, 130 Ind. 139, 14 L. R. A. 733, 29 N.E. 481; Chicago, etc., R. Co. v. Hedges, 118 Ind. 5, 20 N.E. 530. But where the interrogatories propounded to the jury, answered by them, and returned with their general verdict, are irreconcilable with the general verdict, the former will control. In other words, a general verdict will be upheld, unless the facts stated in the answers to special interrogatories are so antagonistic as to preclude reconciliation. Ohio, etc., R. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64; Toledo, etc., R. Co. v. Adams, 131 Ind. 38, 30 N.E. 794; Louisville, etc., R. Co. v. Summers, 131 Ind. 241, 30 N.E. 873; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N.E. 593; Rogers v. Leyden, 127 Ind. 50, 26 N.E. 210; Western, etc., Co. v. Studebaker, 124 Ind. 176, 23 N.E. 1138; Allemong v. Simmons, 124 Ind. 199, 23 N.E. 768; Lockwood v. Rose, 125 Ind. 588, 25 N.E. 710; Barnes v. Turner, 129 Ind. 110, 28 N.E. 322. We are therefore to determine whether or not the answers to the special interrogatories are so antagonistic to the general verdict as to preclude a reconciliation with it. If the two can be construed together, so as not irreconcilably to conflict, then the general verdict should control; but, on the other hand, if they are so antagonistic as to preclude reconciliation, the special verdict must be upheld. In the light of authorities in this State, it seems to us that the question is not of difficult solution.

To entitle the appellant to recover, it was essentially necessary for her to aver and prove that appellee was negligent in the manner charged, and that she was without fault or negligence contributing to her injury. By the general verdict we must, under the authorities, indulge the presumption that she established both of these essential requisites by a fair preponderance of the evidence. When we look to the interrogatories and answers, it is clear, without argument or the citation of authorities, that appellant firmly established the negligence of appellee, so that it leaves the naked question of the negligence, or freedom from negligence, of appellant for our consideration, and this we must determine from the facts specially found. If such facts show that appellant was guilty of negligence, which contributed to her injury, then the answers to the interrogatories would be so antagonistic to the general verdict as to preclude reconciliation with it; for the general verdict can not be reconciled with appellant's contributory negligence, on the theory that, if she negligently contributed to her injury, she can not recover.

Recurring to the answers to the interrogatories, we are confronted at the threshold with the facts that appellant knew of the ditch, its location and relation to the street and sidewalk that the sidewalk was in the course of construction, by having placed on the space intended for it crushed stone and cinders preparatory to laying the brick; that the ditch was about two feet from the sidewalk; that the ditch was six feet deep, with a precipitous stone wall and a solid stone bottom; that she knew it was a dangerous place; that it was a dark night; that she had just been looking into a house through a window, where there was a light;...