Teague v. City of Bloomington

• Decision Date: 23 April 1907
• Docket Number: 5,975
• Citation: 81 N.E. 103,40 Ind.App. 68
• Parties: TEAGUE v. CITY OF BLOOMINGTON
• Court: Indiana Appellate Court

81 N.E. 103

40 Ind.App. 68

TEAGUE v. CITY OF BLOOMINGTON

No. 5,975

Court of Appeals of Indiana

April 23, 1907

From Morgan Circuit Court; James B. Wilson, Judge.

Action by George Teague against the City of Bloomington. From a judgment for defendant, plaintiff appeals.

Affirmed.

R. L Morgan and East & East, for appellant.

Duncan & Batman, for appellee.

OPINION

COMSTOCK, J.

Appellant brought this action against the city of Bloomington to recover damages for personal injuries alleged to have been received by having tripped and being thrown over a wire about one-eighth of an inch in diameter, which was attached to the top ends of five small stakes, which were driven into the ground, about four feet apart, and left projecting about twelve inches above the edges of the intersection of two sidewalks at a crossing of Sixth and Maple streets, public streets in said city. The cause was put at issue, and a trial resulted in a verdict and judgment in favor of the defendant for costs. With their general verdict the jury returned answers to interrogatories.

The errors assigned are the action of the court in overruling appellant's demurrer to the second and third paragraphs, respectively, of appellee's amended answer to appellant's amended complaint, and in overruling appellant's motion for a new trial. No question is made upon the sufficiency of the complaint, and we deem a further statement of its contents unnecessary.

The first paragraph of the amended answer was a general denial. The second alleges, substantially: That, prior to the bringing of the action, Sixth street, at the point referred to in the plaintiff's complaint, was improved by defendant, according to plans and specifications adopted by the defendant, as by law required, and that, in the construction of said street at said point, a brick sidewalk, six feet wide, was constructed along the north side thereof, abutting and adjacent to the property line on said side of said street; that immediately south of said sidewalk, at the point of said alleged injury, and abutting the south side of said sidewalk at said point, was a tree plot or grass plot about six feet in width, and extending westwardly along the south side of said sidewalk from Maple street; that, at and prior to the time of the injury alleged by plaintiff, said city, in accordance with plans and specifications duly adopted, had improved Maple street at the point where the injury occurred, and, in accordance with said plans and specifications, had constructed a brick sidewalk six feet wide along the west side of Maple street at said point, which sidewalk abutted and was adjacent to the property line of the property owners along the west side of Maple street, and intersected said north sidewalk on Sixth street at the point where plaintiff was injured; that the stakes mentioned in plaintiff's complaint as obstructions were situated in said tree plot; that one of said stakes was set in the tree plot near the corner of the intersection of said sidewalks; that others were set in said tree plot along the south side of said north sidewalk along Sixth street and along the west side of said west walk along Maple street; that a wire was attached to the top of each and connected all of said stakes, and was so arranged as a protection for said tree plot, and to prevent pedestrians from crossing over and trespassing on the same; that none of said stakes or the wire was upon or extended across any of said sidewalks or either of them; that in laying out said streets said tree plot had been established for the purpose of beautifying said street, and was not intended to be used by pedestrians for travel, and that the same was shown by the plans and specifications adopted by the common council, and that said improvements had been made and maintained, in the manner set forth in said plans and specifications, for a number of years prior to the injury; that both of said sidewalks at said point were of ample width to accommodate all travel.

Said third paragraph of amended answer is similar to the second except the added averments: "That at the time of said injury, and continuously to the present time, the property immediately in front of which is the tree plot described in the plaintiff's complaint, to the point where his...