Senhenn v. City of Evansville
| Decision Date | 02 April 1895 |
| Docket Number | 17,105 |
| Citation | 40 N.E. 69,140 Ind. 675 |
| Parties | Senhenn v. The City of Evansville |
| Court | Indiana Supreme Court |
From the Vanderburgh Superior Court.
The judgment is reversed, with instructions to grant a new trial.
J. E Williamson, for appellant.
G. A Cunningham, for appellee.
This was an action brought against the city of Evansville for injuries alleged to have been caused to the appellant when a child four years of age by reason of the falling upon her of a pile of lumber placed in a street of said city.
The complaint was in two paragraphs, but the jury by their answer to an interrogatory, showed, in effect, that their verdict was under the second paragraph only.
The interrogatory so answered was not submitted to the jury at the request of either party, but by the court on its own motion. This, it is argued, was error. We are of the opinion, however, that, in the exercise of its discretion, subject to review, as in other cases, the court may prepare and propound to the jury proper interrogatories, to be returned with a general verdict. Killian v. Eigenmann, 57 Ind. 480; Louisville, etc., R. W. Co. v. Worley, 107 Ind. 320, 7 N.E. 215.
The first paragraph of the complaint charged that the lumber was piled in the street by the city itself. The interrogatory submitted by the court, whether the lumber was placed in the street by any officer, agent or employe of the city; that is, substantially, whether the jury found under the first paragraph of the complaint, was, as we think, one proper to be propounded to the jury.
The other alleged errors discussed relate chiefly to the giving and refusing of certain instructions.
In the third instruction given, at the request of the appellee, the jury were told: "It is not claimed in the complaint that the fact that the lumber was in the street constituted negligence, and that of itself is not sufficient to charge the defendant with negligence."
The fifth instruction given was to the like effect: "The jury should, in connection with the other instructions given by the court, bear in mind the fact that the cause of the injury complained of is alleged in the complaint to have been the manner in which the lumber was piled, and unless the injury was caused by the negligent manner in which it was piled, she cannot recover, no matter by whom, nor for what purpose, nor for what length of time it was placed there."
There seem to us to be two errors in these instructions, one of fact and one of law.
We think it is claimed in the complaint "that the fact that the lumber was in the street constituted negligence." We also think that, of itself, is "sufficient to charge the defendant with negligence."
In the second paragraph of the complaint, "plaintiff avers that the said defendant negligently and carelessly caused or suffered the said street to become and remain obstructed in this, to wit: By a certain pile of heavy lumber which was then and there thrown in and upon the street at the point aforesaid, and so remained for thirty days, of which the defendant then and there had notice."
Because it is also alleged in the complaint that the lumber "was negligently and carelessly piled so that the same was liable to fall over on the sidewalk," it surely does not follow that the act of piling lumber on a public street of the city was not, of itself, an act of negligence.
As said by Worden, J., in the well considered case of Wood v. Mears, 12 Ind. 515: "The general proposition needs the citation of no authorities in its support, that a person who, without fault or negligence on his own part receives a bodily hurt, or suffers a damage to his horse or carriage, in consequence of a direct collision with an...
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