Stroble v. The City of New Albany

• Decision Date: 29 January 1896
• Docket Number: 17,534
• Parties: Stroble v. The City of New Albany
• Court: Indiana Supreme Court

42 N.E. 806

144 Ind. 695

Stroble v. The City of New Albany

No. 17,534

Supreme Court of Indiana

January 29, 1896

Petition for Rehearing Overruled May 6, 1896.

From the Clark Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

M. Z Stannard, C. L. Jewett and H. E. Jewett, for appellant.

G. H Voight and E. B. Stotsenburg, for appellee.

OPINION

Howard, J.

This was an action brought by appellant for injuries occasioned by a defective bridge maintained by appellee upon a public street of said city.

After the cause had been submitted to a jury and the evidence of appellant heard, the appellee moved the court "to withdraw the cause from the jury and find for the defendant, and render judgment in favor of the defendant;" which motion, over the objection of the appellant, was sustained. Thereupon the court found for the appellee, and rendered judgment on such finding.

In Engrer v. Ohio, etc., R. W. Co., 142 Ind. 618, 42 N.E. 217, this court, following City of Plymouth v. Milner, 117 Ind. 324, 20 N.E. 235, held that the proper practice under circumstances such as we are considering, if the defendant thought the plaintiff's evidence made no case against it, was, not to move the court to withdraw the case from the jury, but to ask that the court direct the jury to return a verdict for the defendant.

But in the Engrer case an examination of the evidence showed that the plaintiff was guilty of contributory negligence and could not, therefore, in any event, recover, so that the error of the court in withdrawing the case from the jury was harmless. Following that ruling it will therefore be necessary, in order to know whether the action of the court in this case was harmless or not, to examine the evidence and see whether it shows negligence on the part of appellee and contributory negligence on the part of appellant.

The evidence shows that after dark, on the evening of the accident, the appellant drove upon the bridge from the north and towards the business center of the city; that when he reached near to the south end of the bridge his horse came against a barricade or obstruction placed across the bridge and began backing away, turning off or lunging partly to the right, when the left hind wheel of the buggy went over the east side of the bridge, from which the guard rails had been removed or suffered to decay, and the appellant fell out and down upon a rocky bottom, twenty-five or thirty feet below, breaking his leg and causing other injuries; that about two months previous the bridge, which was old and out of repair, had been in part closed to vehicles by placing the obstruction across the south end, leaving a passageway for pedestrians. Whether there had been at any time a guard thrown across the north end of the bridge to prevent or warn travelers from entering there, is left somewhat uncertain by the evidence; but there is no question that at the time of the accident, and for a long time previous, there was no such obstruction to travel across that end of the bridge. That there had at one time been guards at each side of the bridge, but for a long time they had been in part suffered to fall into decay; and a part of the guard rail on the east side, where the buggy went off, had been removed by the street commissioner to be used as a guard at another point on the street. There is much conflict in the evidence as to whether there was a light some distance north of the north end of the bridge, and between the bridge and a slough or wash-out that crossed the street at that point, and over which, the evidence seems to show, there was some kind of a plankway or...