Terre Haute City Lines v. Kroeger
| Decision Date | 01 March 1945 |
| Docket Number | 17270. |
| Citation | 59 N.E.2d 575,115 Ind.App. 376 |
| Parties | TERRE HAUTE CITY LINES, Inc., v. KROEGER. |
| Court | Indiana Appellate Court |
Appeal from Greene Circuit Court; Karl Parker Vosloh, Judge.
Action by Myrtle Kroeger against the Terre Haute City Lines, Inc. and the City of Terre Haute for personal injuries sustained by plaintiff in alighting from defendant corporation's bus. Judgment for plaintiff and defendants appeal.
Reversed with instructions.
James M. Hudson, of Bloomfield, and Cooper Royse, Gambelt & Crawford and Beasley, O'Brien, Lewis & Beasley, all of Terre Haute, for appellants.
George W. Wells and Edward S. Everett, both of Terre Haute, and Allen G. Pate, of Bloomfield, for appellee.
The appellee brought this suit against the appellants as joint tort-feasors whose alleged concurrent negligence resulted in injuries to her person. The case was tried to a jury in the Greene Circuit Court and resulted in a verdict for the appellee against both appellants in the sum of $3500 with judgment accordingly. The appellants filed separate motions for a new trial which were overruled and in this appeal they each assign error separately. The sole error assigned by each appellant and not waived challenges the court's ruling on its motion for a new trial.
The appellee fell and broke her left ankle while alighting from a bus belonging to and operated by the Terre Haute City Lines Inc., at or near the southeast corner of Tippecanoe and North 6th Streets in the City of Terre Haute, Indiana, on the 2nd day of February, 1942, at approximately 3:25 in the afternoon. North 6th Street, rumning north and south, and Tippecanoe Street, running east and west, intersect each other at right angles. Each street is paved and each has a cement curb constituting an integral part of such pavement. Between the curb and the sidewalk on each of said streets there is a parkway. At the southeast corner of the intersection the sidewalk on Tippecanoe Street extends through the parkway on North 6th Street to the curb. Immediately south of the point where the Tippecanoe Street sidewalk joins the North 6th Street curb said curb is entirely broken out to the pavement level for a distance of five or six feet. Between the gap in the curb and the sidewalk on North 6th Street the parkway slopes down to the pavement level and is transversed by a foot path. The north end of the curb where this large gap begins is rough, uneven and angular.
The appellee's complaint is drawn upon the theory that the large gap in the curb above described with the rough, sloping and uneven surface of said curb at the south end of such gap constituted a defect in the street that rendered it dangerous and unsafe for travelers and that the appellant city, in the exercise of ordinary care, could have known of such defect in ample time to have repaired it before the appellee was injured thereby. That, as a passenger on its bus, the appellant Terre Haute City Lines, Inc., owed the appellee a duty to select a reasonably safe place upon which to alight when leaving the bus but negligently discharged her at such gap in the curb without any warning of its danger. That the negligence of the appellants as above charged concurred to produce her injury.
The appellants' combined motions for a new trial specify 76 grounds therefore, all of which have been set out in a voluminous brief under 42 separate and distinct propositions. We pass down the list to what we consider reversible error without comment on other questions presented in the belief that they will not likely arise upon a retrial of this cause.
Among other things, the appellants sought to prove contributory negligence as a defense and now earnestly contend that the record before us establishes such negligence as a matter of law. We are concerned with this question only so far as it furnishes a background against which we have tested the propriety of instruction No. 10 given by the court upon its own motion and which will hereafter be set out in full. In our opinion the evidence does not disclose contributory negligence as a matter of law, but the question is a serious one as is indicated by the appellee's own version of her conduct. The same is narrated in the appellants' brief without challenge and we quote as follows: ...
To continue reading
Request your trial