State v. Dwenger

• Decision Date: 16 February 1976
• Docket Number: No. 2--1073A231,2--1073A231
• Citation: 341 N.E.2d 776,168 Ind.App. 90
• Parties: STATE of Indiana et al., Appellants, v. Margaret C. DWENGER, Appellee.
• Court: Indiana Appellate Court

Page 776

341 N.E.2d 776

168 Ind.App. 90

STATE of Indiana et al., Appellants, v. Margaret C. DWENGER, Appellee.

No. 2--1073A231.

Court of Appeals of Indiana, Second District.

Feb. 16, 1976.

Rehearing Denied March 18, 1976.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellants

Donald W. Ward, John F. Ittenbach, Feeney & Ward, Indianapolis, for appellee.

WHITE, Judge.

The plaintiff-appellee Margaret C. Dwenger (Dwenger), a pedestrian, crossed over a depressed limited access, state highway (Madison Avenue, Indianapolis, U.S. Highway 31) on a pedestrian bridge built and maintained by appellant Indiana State Highway Commission (State) at what was formerly the Palmer Street intersection. She recovered judgment of $20,000.00 against the State in a jury verdict for injuries she suffered when she stepped into a hole at the west end of the bridge. The Palmer Street concrete sidewalk onto which she should have stepped was narrower than the bridge, leaving a space from which rainwater draining off the bridge had washed out the earth at the edge of the sidewalk creating the hole.

The errors assigned in the State's Motion to Correct Errors and argued in its brief fall into three categories and will be so discussed herein, namely;

1. Failure to prove that the State was liable.

2. Contributory negligence on the part of Dwenger.

3. Errors in the conduct of the trial.

I. FAILURE TO PROVE LIABILITY

State's argument on this issue is that the evidence is insufficient to show negligence in the design and construction of the bridge, and that the evidence is insufficient to show that the State, as opposed to the City of Indianapolis, had the duty to maintain the specific area involved.

The undisputed evidence shows that the footbridge involved is the first such structure ever built by the Highway Commission, and that the engineers involved had not had any prior experience with footbridges. It further shows that the planning of the entire project was sort of a patchwork affair. The bridge was not considered when the plans for Madison Avenue were prepared nor before construction began on that road, but was instead added to the road construction contract.

Apparently the Highway Commission did not start from scratch and design a pedestrian bridge but instead tried to adapt the design for a vehicular bridge with as little change as possible. No explanation was given for having the bridge walkway 3 feet wider than the approach sidewalk. The reason given for the lack of drainage was a belief that the water runoff would not be significant. The evidence further shows that the erosion occurred over the course of years and that the highway department inspected the bridge regularly over the same course of years, one such inspection being made six months prior to Dwenger's accident. (The highway department claims such inspections were solely to determine the structural integrity of the bridge, not to discover any defect in its surface. The condition of the surface, the department maintains, was the responsibility of the City of Indianapolis.)

There was evidence sufficient to have sustained a jury finding that the Highway Commission begrudgingly yielded to neighborhood pressure in deciding to construct the bridge and that it did so in the quickest and simplest manner possible, and with so little interest in the final product that it subsequently made no attempt to determine whether it was constructed to serve its purpose of providing a safe pedestrian crossing. In short the jury could have found from the evidence that the Highway Commission had negligently designed and constructed the footbridge.

On the relationship between negligence and injury in Gregory v. White Truck and Equipment Co., Inc. (1975), Ind.App., 323 N.E.2d 280, 284, we said:

'For a plaintiff's damages to be proximately caused by the negligent act of a defendant, the injuries need only be a natural and probable result thereof; the injurious consequences visited upon a plaintiff must be those which, in light of the circumstances, should reasonably have been foreseen or anticipated.'

The erosive power of flowing water is common knowledge. The jury could reasonably have found that the commission's engineers could and should have foreseen that directing the flow of water over the narrow and steeply slanted strip of ground surrounded on three sides by concrete would eventually wash away a large portion of that ground, creating the hole at the end of the bridge. Consequent injury to pedestrians using the bridge was equally foreseeable. Thus the evidence was sufficient to sustain the jury's verdict that Dwenger's injury was the proximate result of the State's negligence.

The State's argument that maintenance of the walkway area was not its responsibility but that of the City of Indianapolis is, in effect, an argument that Dwenger's injury was the proximate result of the City's intervening negligent maintenance and not of the State's original negligent design and construction. Without deciding whose was the duty to maintain the area in question, we reject that argument.

Citizens Telephone Co. v. Prickett (1919), 189 Ind. 141, 125 N.E. 193, involved a situation wherein two independent contractors had damaged a telephone pole below the surface of the ground, and thus weakened the pole. They advised the telephone company of the weakening of the pole. The telephone company later sent one of its employee-linemen to remove some wires from the pole, but did not tell him of the pole's weakened condition. In holding the contractors liable for the injuries sustained by that lineman when the pole fell, the court said (189 Ind. at 155--6, 125 N.E. at 197):

'. . . In Union Pac. Ry. Co. v. Callaghan (1893), 56 Fed. 988, 6 C.C.A. 205, the court in speaking of an independent intervening agency said: 'The independent intervening cause that will prevent a recovery on account of the act or omission of a wrongdoer must be a cause which interrupts the natural sequence of 'An independent intervening agency which will protect the original wrongdoer must be the efficient cause of the injury of which complaint is made, and not a negligent act or omission of such agency concurring with or succeeding the original negligence permitted by the original wrongdoer to continue and which in the natural course of events results in such injury.'

events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result, that could not have been reasonably anticipated. The concurrent or succeeding negligence of a fellow servant or a third person which does not break the sequence of events is not such a cause, and constitutes no defense for the original wrongdoer, although, in the absence of the concurrent or succeeding negligence, the accident would not have happened.' The negligence of the telephone company in failing to warn appellee, after it had notice of the dangerous condition of the pole, was not an intervening [168 Ind.App. 95] cause that interrupted or turned aside the natural sequence of events, or prevented the natural and probable effect of the negligent cutting of the pole. It simply failed to interpose the care of the company to prevent the probable result. . . .

In the instant case the failure of the City to maintain the footbridge, assuming the City had such a duty, 'was not an intervening cause that interrupted or turned aside the natural sequence of events' resulting from the negligent design and construction of that footbridge.

II. CONTRIBUTORY NEGLIGENCE

State argues that the evidence conclusively proves that Dwenger was contributorily negligent as a matter of law in that the hole itself was clearly visible and Dwenger had prior knowledge of its existence, or alternatively, that she incurred the risk by using the footbridge knowing that the hole was there when she could have used another route which was safer.

In Town of Argos v. Harley (1943), 114 Ind.App. 290, 49 N.E.2d 552, the appellee was injured when he tripped over a pipe embedded in a sidewalk and extending two or three inches above the sidewalk surface. The pipe had been there for two years, was in plain view, and the appellee had prior knowledge that it was there. The court specifically held that 'previous knowledge of a defect, in itself, does not charge one, if injured thereby, with contributory negligence as a matter of law. Evidence of such previous knowledge is competent and, in determining the question, should be considered by the jury along with other evidence on the subject.' (114 Ind.App. at 306, 49 N.E.2d at 558.) As to the plain view argument, the court, omitting citations, said (114 Ind.App. at 306, 49 N.E.2d at 558):

'. . . We are of the opinion that whether said appellee, in the exercise of ordinary care for his own safety, should have been looking at the sidewalk immediately prior to and at the time of the accident was a question for the jury to determine from all the facts and circumstances disclosed by the evidence. A pedestrian is not bound to keep his eyes constantly on the sidewalk. . . . Nor is he required to make an active search for defects . . .. He is not negligent, as a matter of law, in failing to see a defect in plain view . . ., and especially is this true when his attention is diverted by some sufficient cause . . .'

As to argument that Dwenger incurred the risk by choosing to use the footbridge rather than following a different route, the court in Easley v. Williams (1975), Ind.App., 321 N.E.2d 752, 754, said:

'The choice of ways doctrine is applicable only where there are alternative paths to choose and the path chosen involves a danger so great and apparent Dwenger did not own or have access to a car and the only alternative pedestrian route between her residence and the grocery store involved crossing Madison Avenue itself at its intersection with Terrace Street. As...