Town of New Castle v. Mullen

• Citation: 87 N.E. 146,43 Ind.App. 280
• Decision Date: 16 February 1909
• Docket Number: 6,275
• Parties: TOWN OF NEW CASTLE v. MULLEN
• Court: Indiana Appellate Court

87 N.E. 146

43 Ind.App. 280

TOWN OF NEW CASTLE v. MULLEN

No. 6,275

Court of Appeals of Indiana

February 16, 1909

From Fayette Circuit Court; George L. Gray, Judge.

Action by Martha J. Mullen against the Town of New Castle. From a judgment for plaintiff, defendant appeals.

Affirmed.

Beach & Mikels and Reuben Conner, for appellant.

H. H Evans, D. W. McKee and S. H. Brown, for appellant.

OPINION

ROBY, J.

Suit to recover damages on account of personal injuries alleged to have been caused by a defective sidewalk. The complaint is in one paragraph; issue was made by a general denial; trial by jury; verdict and judgment for $ 500. The assignment of errors is addressed to the action of the court in overruling appellant's motion for a new trial.

The defect is described in the complaint as follows: "That prior to August 10, 1904, the sidewalk became out of repair the bricks had become loose, and had been removed from said sidewalk, thereby causing a hole to be made therein, about four feet long, two feet wide and six inches deep; that said sidewalk had been out of repair for a long time prior to August 10, 1904, and is still out of repair, and that said defendant had full knowledge thereof." The facts established without dispute are that appellee, while walking along said sidewalk on a certain night in August, 1904, fell and was injured. Thirty-three grounds for a new trial are stated.

Under the specification that the verdict is not sustained by the evidence, it is insisted that there is no testimony connecting appellee's fall with the hole in the sidewalk which is shown to have existed substantially as alleged. The accident took place in the immediate vicinity of the defect. A witness who was with appellee testified that they were "right by" the hole when the accident happened. Another witness testified that he saw appellee fall, observed the place where she fell, and described the hole to the jury. Appellee testified: "When I stepped with my right foot upon the brick my right foot turned, and that threw me on my left one and threw me backward." No attention was directed to the alleged defective proof, and the inference drawn by the jury was a reasonable one and within its province.

Counsel for appellant base their principal argument upon the proposition that "we maintain the law to be that a person who has knowledge of a defective sidewalk, and with such knowledge of its dangerous condition...