The Brush Electric Lighting Company v. Kelley

• Decision Date: 26 November 1890
• Docket Number: 14,566
• Citation: 25 N.E. 812,126 Ind. 220
• Parties: The Brush Electric Lighting Company v. Kelley
• Court: Indiana Supreme Court

25 N.E. 812

126 Ind. 220

The Brush Electric Lighting Company v. Kelley

No. 14,566

Supreme Court of Indiana

November 26, 1890

From the Carroll Circuit Court.

Judgment affirmed, with costs.

A. L Kumler, R. P. Davidson and J. C. Davidson, for appellant.

OPINION

Berkshire, J.

The complaint counts upon negligence and personal injuries sustained by the appellee, resulting therefrom.

We are not favored with a brief on the part of the appellee, and must pass upon the questions involved unaided by any argument in her behalf.

The appellant's counsel argue but two questions: 1. Does the complaint state a good cause of action? 2. Was the appellee entitled to judgment upon the special verdict?

We are of the opinion that both questions must be answered in the affirmative.

There is no contention that the complaint does not sufficiently charge negligence upon the appellant, and it is conceded that it contains the usual negative allegations that there was no contributory negligence on the part of the appellee.

It is contended, however, that notwithstanding such negative allegations, contributory negligence is disclosed by the complaint.

The charge in the complaint, shortly stated, is that while the appellant, by its servants, was erecting and placing a line of wire to be used in supplying electricity for light along Main street, in the city of Lafayette, it negligently and carelessly placed, and allowed to remain, on and along the sidewalk of said street, a wire, and during the time said wire was thus negligently permitted to lie upon said sidewalk the appellee walked carefully along said sidewalk where said wire was lying, and, without her fault, her foot caught and became entangled with said wire, whereby she was violently thrown to the ground and permanently injured.

The complaint alleges that the occurrence happened in the daytime, and it is argued that it was the duty of the appellee to observe the wire, or to specifically allege some sufficient reason why she did not.

We do not think that it necessarily follows that the appellee was prima facie guilty of negligence in not observing the obstruction.

She had the right to presume that the sidewalk was free from obstruction, until her attention was in some way called thereto, and to act upon such presumption.

We quote the following from Elliott Roads and Streets, at page 471: "The question of contributory negligence is, generally, for the jury to determine from the circumstances of the case. The following cases illustrate the principles above stated in regard to contributory negligence, and show their application to particular facts. Where the plaintiff, assuming that a sidewalk was safe, and knowing nothing to the contrary, permitted her attention to be momentarily attracted to some children playing in the street, and fell into a hole in the sidewalk from which the cover had been removed, she was held not guilty of contributory negligence." The author cites the following cases in support of the text. Barry v. Terkildsen, 72 Cal. 254 (1 Am. St. Rep. 55, 13 P. 657); Hussey v. Ryan, 64 Md. 426, 2 A. 729; Jennings v. Van Schaick, 108 N.Y. 530 (2 Am. St. Rep. 459, 15 N.E. 424); Kelly v. Blackstone, 147 Mass. 448, 18 N.E. 217. We cite, also, our own case of Noblesville Gas, etc., Co. v. Loehr, 124 Ind. 79, 24 N.E. 579.

A small wire lying along a sidewalk...