The City of Columbus v. Strassner

• Citation: 25 N.E. 65,124 Ind. 482
• Decision Date: 25 June 1890
• Docket Number: 13,402
• Parties: The City of Columbus v. Strassner
• Court: Supreme Court of Indiana

25 N.E. 65

124 Ind. 482

The City of Columbus v. Strassner

No. 13,402

Supreme Court of Indiana

June 25, 1890

From the Decatur Circuit Court.

Judgment reversed, with costs.

S Stansifer, C. S. Baker and G. W. Cooper, for appellant.

J. D Miller, F. E. Gavin and J. C. Orr, for appellee.

OPINION

Berkshire, C. J.

This is an action instituted by the appellee against the appellant for damages.

The complaint contains two paragraphs. To each paragraph a demurrer was filed.

The court overruled the demurrers, and exceptions were reserved.

An answer in general denial was filed by the appellant. The cause was submitted to a jury, who returned a verdict for the appellee, and over a motion for a new trial judgment was rendered in accordance with the verdict of the jury.

The errors assigned are as follows:

1. The court erred in overruling the demurrer to the first paragraph of the complaint.

2. The court erred in overruling the demurrer to the second paragraph of the complaint.

3. The court erred in overruling the motion for a new trial.

The only objection made to the first paragraph of the complaint is that it fails to show that the sidewalk complained of was one which it was the duty, or right, of the appellant to keep in repair.

The same objection is made to the second paragraph, and an additional objection that the facts alleged in the second paragraph disclose contributory negligence. We do not think either objection is well taken.

The following allegations as to the location of the sidewalk complained of appear in the first paragraph of the complaint:

"The plaintiff, Mattie Strassner, complaining of the defendant the city of Columbus, Indiana, says that said defendant is a municipal corporation; that as such corporation it has exclusive authority and jurisdiction over its streets, alleys, and sidewalks; that it is its, the said defendant's, duty to maintain the same in good and safe repair; that regardless of this, its said duty, the defendant, about four months prior to the 9th day of May, 1884, negligently permitted one of its said sidewalks, to wit, the one on the west side of Washington street, in front of building No. 334, a storeroom occupied by John F. Snyder, to get out of repair, and become dangerous to the life of pedestrians."

No greater strictness is required in pleading under our liberal practice than certainty to a common intent; the pleading in question comes up to this standard. It is alleged that the appellant had exclusive authority and jurisdiction over its streets, alleys and sidewalks, and negligently permitted one of its said sidewalks, to wit, the one on the west side of Washington street to get out of repair, etc. This sufficiently shows, without further particularity, that the sidewalk where the injury is alleged to have occurred was within the city and under its jurisdiction. The averment is still stronger in the second paragraph, for in addition to what is alleged in the first paragraph, it alleges that the city had control of said sidewalk for many years. See Tice v. City of Bay City, 44 N.W. 52; Ivory v. Town of Deer Park, 116 N.Y. 476, 22 N.E. 1080. But the language of the paragraphs of the pleading in question is so similar to that found in the complaint in the case of City of Lafayette v. Larson, 73 Ind. 367, that we are inclined to the opinion that the one was copied from the other. We do not think that the second paragraph of the complaint, on its face, imputes contributory negligence to the appellee, and as it does not the question was left as a question of fact for the jury, and is not open to the objection urged against it.

In City of Elkhart v. Witman, 122 Ind. 538, 23 N.E. 796, this court said: "It is asserted by counsel that the complaint is bad because it does not show that the plaintiff was not guilty of contributory negligence, but in our opinion counsel are clearly in error. The direct averment is made that she was injured without fault or negligence on her part, and this, as has been many times decided, is sufficient to show that she was not guilty of contributory negligence. * * Where the complaint alleges that the injury occurred without the fault of the plaintiff it will be sustained, unless it clearly appears, from the facts specifically stated, that there was negligence on his part which contributed to the injury. There are no facts from which it can be inferred, in the face of the direct averment that there was no fault on the part of the plaintiff, that she was guilty of contributory negligence. It does not appear that she knew of the unsafe condition of the sidewalk, but if she did, it would not be conclusive against her; for, although knowledge of a defect is evidence of an important character tending to show contributory negligence, it does not of itself establish that fact." That case seems to be decisive of the question here under consideration.

We think that, notwithstanding the facts pleaded, there may have been want of contributory negligence, and as the paragraphs expressly aver that the appellee was not guilty of contributory negligence, the pleading is not ill because of the second objection urged against it.

This brings us to the third assigned error.

We are not willing to hold that the uncontradicted evidence introduced on the trial disclosed contributory negligence on the part of the appellee, and this we would have to do if we were to decide that the verdict of the jury was not supported by sufficient evidence.

Conceding that the appellant in its brief has correctly and fully copied the testimony of the appellee relating to the question of contributory negligence (and this it has done, substantially if not literally), when all of the evidence in the case is considered we are not able to say as a matter of law that the appellee was guilty of contributory negligence.

The question of contributory negligence, as a question of evidence, was a controverted question, and therefore a question purely of fact for the determination of the jury. See Jung v. City of Stevens Point, 43 N.W. 513.

In Holloway v. City of Lockport, 54 Hun 153, the court said: "The duty of the defendant was to keep the streets, and sidewalks, constructed under its orders and directions within the city limits, in a reasonably safe and secure condition. If the plaintiff did, in fact, know of the real condition of the walk before the accident happened, that circumstance alone does not deprive him of a right of action. That circumstance, however, with all the other facts bearing on the question, was to be considered and weighed by the jury in determining whether the plaintiff was guilty of contributory negligence. We think that the jury properly disposed of that question; at least the case, as presented by all the evidence, is such as not to permit us to disturb their finding on the question."

The foregoing expresses the true rule as we understand it, and is in accord with our own cases. See Town of Gosport v. Evans, 112 Ind. 133, 13 N.E. 256; City of Fort Wayne v. Breese, 123 Ind. 581, 23 N.E. 1038.

In City of Chicago v. McLean, 24 N.E. 527, the court said: "Appellant also assigns as error the refusal of the court to give the fourth and sixth instructions asked by it. In the fourth it was stated that 'a person in the full possession of her faculties, passing over a sidewalk when...