The City of Alexandria v. Young

• Citation: 51 N.E. 109,20 Ind.App. 672
• Decision Date: 29 June 1898
• Docket Number: 2,366
• Parties: THE CITY OF ALEXANDRIA ET AL. v. YOUNG
• Court: Indiana Appellate Court

51 N.E. 109

20 Ind.App. 672

THE CITY OF ALEXANDRIA ET AL. v. YOUNG

No. 2,366

Court of Appeals of Indiana

June 29, 1898

Rehearing denied October 13, 1898.

From the Delaware Circuit Court.

Affirmed.

R. S Gregory, A. C. Silverburg, O. J. Lotz and Shannon &amp Rizer, for appellants.

James A. May, Joseph G. Leffler, Walter L. Ball and John E. Wiley, for appellee.

OPINION

HENLEY, C. J.

The appellee was the plaintiff in the lower court, and prosecuted this action to recover damages resulting from an injury received by falling into an excavation or trench dug in a certain street in the city of Alexandria. The action was begun in the Madison Circuit Court, and in addition to the appellants, one Walter Fleming and the Alexandria Water-works were made defendants. The defendants separately demurred to the complaint, assigning as cause that the complaint did not state facts sufficient to constitute a cause of action. These demurrers were overruled, and the defendants each excepted to the ruling thereon. The defendants separately answered. These answers were each general denials, there being no other answers filed. The venue was changed to the Delaware Circuit Court, where there was a trial by jury and a special verdict returned, wherein appellee's damage was assessed at $ 3,000.

Motions for judgment upon the special verdict were separately made by each party to the action. The motions of each of the appellants for judgment on the special verdict were overruled. The separate motions of the defendants the Alexandria Water-works and Walter Fleming were sustained. The motion of appellee for judgment upon the special verdict against appellants was sustained. Appellants filed their joint and several motions for a new trial which was overruled, as was also the motion in arrest of judgment. Thereupon the court rendered judgment against appellants in the sum of $ 3,000. Appellants have jointly and severally assigned error as follows: (1) Error in overruling appellants' demurrer to appellee's amended complaint. (2) Error in overruling appellants' motion for judgment upon the special verdict of the jury. (3) Error in sustaining appellee's motion for judgment upon the special verdict. (4) Error in overruling appellants' motion for a new trial. (5) Error in overruling appellants' motion in arrest of judgment.

Counsel for appellants, in their argument first question the sufficiency of the complaint, which question was raised in the lower court by the separate demurrers of appellants directed thereto. The complaint alleges, that the Alexandria Water-works is a duly incorporated company under the laws of the State of Indiana; that the city of Alexandria is a duly incorporated city under the general laws of this State; that about the 1st of July, 1895, said city of Alexandria advertised for bids for the construction of a system of water-works for said city, and that the Seckner Contracting Company was one of the bidders for such work, and that said bid was duly accepted by the common council of said city of Alexandria. Appellant, the said Seckner Contracting Company, duly assented to said acceptance; that on the 13th day of August, 1895, the said city of Alexandria, by its common council, adopted an ordinance granting a franchise for the construction of said water-works system to the Alexandria Water-works, which water-works were to be constructed in accordance with the plans and specifications on file in the city engineer's office; that the Alexandria Water-works duly accepted said franchise and all of the terms of the said ordinance, and on the 15th day of August, 1895, the said Alexandria Water-works and the appellant, the Seckner Contracting Company entered into a contract whereby the Seckner Contracting Company was to construct said water-works system and to give its bond to the said Alexandria Water-works for the faithful performance of such contract, and the Alexandria Water-works did, on the 25th day of August, 1895, assign said bond to the appellant, the said city of Alexandria, to secure the said city for the faithful construction of the said water-works system in accordance with the said plans and specifications; that on or about the 1st day of September, 1895, the appellant, the Seckner Contracting Company began work in the construction of the said water-works system, and about the same time entered into a contract with one Walter Fleming, whereby said Fleming was to oversee the construction of trenches and the laying of pipes needed and required in the construction of the said water-works system; that in the performance of the above contract the said Fleming constructed one of said trenches along and in Fairview avenue in said city of Alexandria, and also another short trench on the arm at or near the junction of Fairview avenue and Adams street, in said city; that said short trench or arm was about fifteen feet in length, and was a part of said water-works system, and said trench when completed, was of the depth of six feet and two inches, and of the width of about two and one-half feet, and lay immediately on and across that part of said Adams street which was most used for travel by pedestrians; that said short trench or arm was left open and wholly unguarded on the evening and night of the 11th day of October, 1895, and that no light or guard of any kind was placed at said short trench on said night and evening, and that appellee fell into said trench on the night of the 11th day of October, 1895, and at the time he so fell into said trench he had no notice or knowledge whatever of the construction or the existence of the same, but was at the said time lawfully pursuing his journey along said Adams street, and the night being very dark and rainy, appellee was careful and cautious in pursuing his journey along said street at said time, and did everything to avoid an injury of any kind; that because of the said failure to have a light or guard of some kind at said trench, it having been left open and wholly unguarded, appellee had no means of knowing its location, or of guarding against falling into it, and because of said trench being so negligently left open and unguarded as aforesaid, appellee was accidentally and without fault on his part precipitated into said trench, wholly and entirely by the gross negligence of the defendants, and without any fault or...