LAYMON
Chief Judge.
This is
an action by appellant against appellees to recover damages
for personal injuries by reason of an accident alleged to
have occurred upon the steps of the front entrance to
appellees' apartment building.
The
complaint was in four paragraphs. The first paragraph
omitting the formal parts, alleges:
"That the defendants are husband and wife and are and
were at the time of the occurrence hereinafter alleged and
long prior thereto, the owners of the apartment building and
premises located at Number 1533 Steele Street, in the city of
Indianapolis, Marion County, Indiana; more particularly
described as lot numbered two (2), in Huntington's
Subdivision of lots numbered 22, 23, and 24, of
Milligan's Brook Park Addition, a subdivision of said
city; that, during said period of time, said building
contained four separate apartments, two on the ground floor
thereof and two on the second floor thereof, for the living
accommodation of separate families, with separate entrances
in the front (West) part thereof, opening upon a common
entrance
with cement, concrete floor, from which, descending to the
street sidewalk elevation, were five common cement, concrete
steps and a cement, concrete walk extending to the sidewalk
of said street,--which said entrance, steps and walk were for
the common use of all persons who were lawfully leaving and
entering said apartment building, and, on either side of said
steps and private walk, for the use of the tenants and
members of the families of said building, were common lawns;
and that, on, or about May 1, 1932, and long prior thereto,
all of said apartments and the greater portion thereof, were
let by said defendants, and each of them, to, and occupied
by, tenants and families of said tenants, who used, and had
the use of, said common entrance, steps and private walk, at
all hours of day and night, and said defendants, and each of
them, as landlords, had and did, retain the care, maintenance
and control of said entrance, steps, walk, and lawns;
"That, on May 1, 1932, and long prior thereto,
plaintiff's family of five persons, including herself, by
and through her husband and son, were tenants of said
defendants, and each of them, and occupied apartment No. One
on the north side of the lower floor of said building;--all
of which defendants, and each of them, well knew and
acquiesced in and to which they, and each of them, consented
and agreed;
"That, prior to May 1, 1932, plaintiff was of sound,
normal health and performed all the household duties of said
apartment and family, including the cooking of the food,
washing and ironing, and actively participated in the social
life of her community and in the devotions and activities of
her church;
"That the surface of the concrete steps, aforesaid, was
hard and smooth, and to cause, and to permit, earth and
gravel to accumulate, and to remain, thereon, and thereby so
obstruct them, rendered them dangerous and unsafe for use by
any person and, particularly, for one coming from within and
and leaving said building, by the front way,--all of which
defendants, and each of them, by the exercise of due care,
should have known, and did know;
"That on, or about, said May 1, and long prior thereto,
defendants, and each of them, kept and maintained supervision
of said common entrance, steps and walk, for the purpose of
keeping them clear of unsafe accumulations and
obstructions,--all of which plaintiff well knew and relied
upon, --and, notwithstanding, defendants and each of them,
well knowing that many persons, including plaintiff,
regularly used said entrance, steps and walk, in leaving and
entering said building, in reliance upon defendants, and each
of them, keeping said steps clear of obstructions and safe,
knowingly and purposely, with a reckless disregard of
plaintiff's rights and of her safety, for several days
prior to said day, continuing in the early morning thereof
and following the occurrence hereinafter alleged, caused, and
permitted the improvement and repair of said lawns, and the
support thereof, adjacent to and on each said of said steps
and walk, with earth, gravel, concrete and concrete
blocks,--the obvious and natural result of which was to, and
did cause earth, hard clods and coarse gravel to accumulate
and to remain upon said steps and walk and to obstruct the
same and thereby render them dangerous and unsafe, without
notice and warning thereof and without guards to prevent
persons from attempting to walk upon and to use said steps;
"That, on, or about, said Sunday, May 1, 1932, at
approximately 8:30 o'clock in the forenoon, plaintiff
left her said apartment in said building, passed out through
said common passage way, to reach said street, over said
steps and walk, and, as she was in the act of descending said
steps, workmen were moving and placing materials near and
adjacent thereto, and solely because of the aforesaid acts,
and each of them of defendants, and each of them, her feet
came into contact with said obstructions and she was thereby,
suddenly and violently thrown down and upon said steps, walk
and lawn support."
The
second, third, and fourth paragraphs of complaint are
substantially the same as the first, except that each of said
paragraphs charges that the acts complained of were
negligently instead of recklessly done. To each paragraph of
complaint appellees answered in general denial. The cause was
submitted to the court and jury for trial, resulting in a
verdict and judgment in favor of appellees. In due time
appellant filed her motion for a new trial, which was
overruled, and perfected this appeal. The only error assigned
for reversal is the ruling on the motion for a new trial, the
grounds of which are substantially as follows: (1) That the
verdict is not sustained by sufficient evidence; (2) that the
verdict is contrary to law; (3) error in the giving and
refusal of certain instructions;
and (4) error in the admission of certain evidence.
The
evidence as disclosed by the record is voluminous and much of
it is conflicting, particularly upon the subject of proximate
cause. Since this court will not weigh evidence, no good
purpose would be served by setting forth a résumé thereof.
The
record discloses that the court gave thirteen instructions
upon its own motion, together with three tendered by
appellees, and fifteen of thirty-three tendered by appellant.
Complaint
is made of the action of the trial court in the giving of
each of the instructions upon its own motion, each of the
instructions tendered by appellee, and in refusing certain of
the instructions tendered by appellant.
Appellant directs our attention to the fact that by leave of
court the complaint was amended by the following
interlineation: "Severe bruises and sprains of the
ligaments, tissues and structure of the hips, lower spine and
pelvic area, impairment of the use of the lower limbs,
damaged bladder, intense physical and mental pain and
anguish." Appellant then points out that the court's
instruction No. 1 attempted to recite the substance of the
first paragraph of complaint, but omitted the language of the
amendment, and thus the instruction was erroneous. The
statement which was added to the complaint by amendment
merely gave a more detailed description of the injuries
complained of, and since the finding of the jury was in
effect a finding in...
