The City of Frankfort v. Coleman
| Decision Date | 24 February 1898 |
| Docket Number | 2,370 |
| Citation | 49 N.E. 474,19 Ind.App. 368 |
| Parties | THE CITY OF FRANKFORT v. COLEMAN |
| Court | Indiana Appellate Court |
From the Clinton Circuit Court.
Affirmed.
J. T Hockman, for appellant.
O. E Brumbaugh and Joseph Combs, for appellee.
Appellant appeals from a judgment recovered by appellee for injuries received because of a defective sidewalk, and assigns as error the overruling of the demurrer to the complaint, the overruling of the motion for a new trial, and the motion in arrest of judgment.
The complaint alleges, in substance, that on the 4th day of July, 1894, appellee, in the exercise of due care and caution, was walking home on a public highway and street known as Fifth street in said city, which street was used by the citizens thereof and the public generally and had been for more than ten years prior thereto; that said highway had negligently been allowed to become and was out of repair and in a dangerous condition for pedestrians to travel over, on account of a number of dangerous holes and excavations in that part generally used by pedestrians; that said holes were dug more than sixty days prior to the date aforesaid, and that the city had notice of them at the time they were dug but carelessly and negligently failed and neglected to repair said highway, or to fill up or remove said dangerous holes and excavations all of said time; that appellee at said time had no knowledge of the existence of said holes, and that the night was too dark for her to see them; that by reason of the carelessness and negligence of appellant in permitting said holes to be and remain in said highway, and by carelessly and negligently failing to repair the same for a period of more than sixty days, appellee, without any fault or negligence on her part, stepped and fell into one of said holes and excavations, whereby she was greatly and permanently injured, the particulars of which are set out in the complaint. We do not think the complaint open to the objections urged against it. It appears from the complaint, taking the pleading as a whole, that the place where appellee was injured was upon a public street of said city; that the city had notice of the defective condition of the street, that the injury occurred at a place within the corporate limits of the city and at a place which it was the city's duty to keep in repair.
The first, second, and third causes for a new trial were that the verdict was not sustained by sufficient evidence, and was contrary to the evidence and the law. These are considered together in appellant's brief, and will be so considered here. It is insisted by appellant's counsel that if any excavation existed where appellee was injured, it was on the outside of the line of the street, and was not at a place which the city was bound to keep in repair. The highway upon which the injury occurred was already in existence when the territory through which it passes became a part of the city; and when this territory was annexed the highway remained and still remains as it then was. The city, by bringing the highway within its corporate limits and leaving it open for public travel, became bound to keep it in an ordinarily and reasonably safe condition for travel. The duty of the city to keep the way in repair was the same, whether the road was laid out and opened by the board of county commissioners or had become a public highway by user.
In 1872 the board of commissioners of the county established a certain highway along the line where the alleged injury occurred. There is a conflict in the evidence as to the location of the exact boundary lines of this highway, and a conflict as to whether the hole or excavation causing the alleged injury is within the limits of the highway thus established by the board. The highway laid out by the board was described as "commencing at the south end of Fifth street, in Torrence's addition to the town of Frankfort; thence south, with the variations of said street, about seventy poles," etc. The road was made fifty feet wide. A question arose on the trial whether this road, as laid out, was run with the variations of the town or with the section line. There was some evidence to the effect that the road established by the board was never opened and used by the public, but that a different way was opened and used. And there was evidence that the holes or excavations were within the limits of the road as established by the board of commissioners and that they were within the limits of the road as opened and used by the public, and there is evidence that the city, through its street commissioner, had expressly recognized the walk where the injury occurred as a part of the street or highway. In City of Lafayette v. Larson, 73 Ind. 367, it is said: See Town of Fowler v. Linquist, 138 Ind. 566, 37 N.E. 133. A sidewalk is a part of a street, and a city's authority over a street extends over the sidewalk as a part of the street. Taber v. Grafmiller, 109 Ind. 206, 9 N.E. 721; City of Kokomo v. Mahan, 100 Ind. 242; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117.
Counsel for appellant and for appellee have filed very voluminous briefs and much space is occupied discussing evidence which was conflicting. There is evidence in the record that the defects were within the limits of the way as established and laid out by the board of commissioners, and that the defects were within the limits of a way used by the public continuously for more than twenty years. Much of the testimony of some of the witnesses is very unsatisfactory as it comes to us, for the reason that they testify directly from maps, and while the maps are in the record, there is nothing by which we can tell, in a great many instances, what lines or points were testified about. We have given the evidence a careful consideration and there is some evidence to support the finding. The rule is too well settled to need the citation of any authorities that the verdict of a jury will not be disturbed where there is some evidence to support it, no matter what the appellate tribunal may think about the preponderance of the evidence.
It is claimed by counsel that it is not shown that the city had notice of the defect. The particular defect consisted of some half dozen holes from six to eight inches in diameter, and from two or three to ten inches in depth. There is evidence tending to show that the street commissioner of the city knew of the holes in the street; but whether there is sufficient evidence to show that the city had actual notice, there is evidence that the holes were dug in the walk in April...
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