Town of Lewisville v. Batson

• Decision Date: 29 April 1902
• Citation: 29 Ind.App. 21,63 N.E. 861
• Parties: TOWN OF LEWISVILLE v. BATSON.
• Court: Indiana Appellate Court

29 Ind.App. 21

63 N.E. 861

TOWN OF LEWISVILLE

v.BATSON.

Appellate Court of Indiana, Division No. 1.

April 29, 1902.

Appeal from circuit court, Henry county; W. O. Barnard, Judge.

Action by Ezra Batson against the town of Lewisville. From a judgment in favor of plaintiff, defendant appeals. Reversed.Forkner & Forkner and Wm. A. Brown, for appellant. Bundy & Morris, for appellee.

ROBINSON, P. J.

Suit for personal injuries claimed to have been occasioned to appellee by reason of an obstruction on a sidewalk. Between 3 and 5 o'clock in the afternoon of January 29th a quantity of scrap iron, purchased by a blacksmith, had been deposited near the sidewalk in front of his shop, so that a portion of it extended upon the walk. The injury occurred about 9 o'clock the same evening.

A bill of exceptions containing the evidence has the certificate and signature of the trial judge, and, within the time given, a record entry recites, the bill was filed. The fact that the bill contains other matters than the evidence does not affect it as a bill containing the evidence. While there has not been a strict compliance with the rules of this court, yet, with a complete index to the evidence, which is not voluminous, together with the method employed in setting out the examination, cross-examination, and re-examination of the witnesses, and the references in the briefs, we think it should be held that there has been a substantial compliance with the rules.

The negligence charged against appellant is permitting the walk to be and remain in an unsafe condition because of an obstruction placed on the walk by a third party. In such cases it is well settled that the municipality cannot be held liable unless it had actual or constructive notice of the obstruction. If it has actual notice, it must be given a reasonable time in which to remove the obstruction. It is required to use active vigilance with reference to the condition of its streets, and if an obstruction has existed for such a length of time that, considering the circumstances of the case, the municipality or its officers might have obtained knowledge of it by the exercise of a reasonable degree of diligence and attention to the condition of the streets, knowledge of the obstruction will be implied. City of Ft. Wayne v. Patterson, 3 Ind. App. 34, 29 N. E. 167, and cases cited; City of Evansville v. Wilter, 86 Ind. 414;Turner v. City of Indianapolis, 96 Ind. 51;City of Indianapolis v. Murphy, 91 Ind. 382;Town of Monticello v. Kennard, 7 Ind. App. 135, 34 N. E. 454. The jury find that neither the trustees nor any officer of appellant had any actual knowledge of the placing of the obstruction on the walk, or of its presence there, at any time before appellee was injured. The jury necessarily found, by the general verdict, that appellant had constructive knowledge of the obstruction, and they so stated in an answer to an interrogatory. Appellant, by the last census, had a population of a little over 400. The street was obstructed by the act of a wrongdoer only a short time before dark, and about 9 o'clock of the same evening the injury occurred. The day was cloudy, and the night dark. The pile of iron itself was not an obstruction, but two or three rods of iron from the pile extended out upon the walk. It was not an obstruction of such notorious character that a person...