Town of Newcastle v. Grubbs

• Decision Date: 18 December 1908
• Docket Number: No. 21,025.,21,025.
• Citation: 171 Ind. 482,86 N.E. 757
• Parties: TOWN OF NEWCASTLE v. GRUBBS.
• Court: Indiana Supreme Court

171 Ind. 482

86 N.E. 757

TOWN OF NEWCASTLE

v.GRUBBS.

No. 21,025.

Supreme Court of Indiana.

Dec. 18, 1908.

Appeal from Circuit Court, Delaware County; J. G. Leffler, Judge.

Action by Claude Grubbs against the town of Newcastle to recover for injuries received by falling from a sidewalk upon an unguarded excavation. Judgment for plaintiff and defendant appeals. Affirmed.

The court in instruction No. 7 charged that, if the jury believed from the evidence that there was an excavation and hole in the vacant lot in question, and that the surface of said excavation and the ground surrounding it were much lower than the surface of the sidewalk, and that the excavation came up to said sidewalk, and that said condition had so existed for a period of two years before the time of the alleged injury to plaintiff, and such place was the place where plaintiff was injured, and that said low ground so adjacent to said sidewalk was without any guard or barrier separating said walk from said low ground, and had so existed for two years prior thereto, and that by reason thereof said sidewalk was rendered unsafe and dangerous for persons walking on said sidewalk in the nighttime in the exercise of due care, then it was the duty of the town to maintain a guard or barrier along said walk, and the failure to do so, after notice of said condition, would be negligence. In instruction No. 8 the court stated that the negligence complained of is in failing to place a guard or barrier across and along the sidewalk in question, and in determining the question of negligence the jury might consider the nature and character of the adjoining lot, its location and condition with reference to the sidewalk, the situation of the buildings about and around the lot, and all other conditions bearing upon the question. Instruction No. 11, requested by defendant and refused, was to the effect that, if plaintiff knew of the condition of the walk, and attempted to pass a place where it was dangerous in consequence of the darkness of the night, he could not complain of the injuries received, as in such case he takes the risk on himself, and if the condition of the sidewalk was known to plaintiff, he could not recover if he attempted to pass over it in a dark night and was injured. Instruction No. 12, requested by defendant and refused, was to the effect that one who knows of a dangerous obstruction in the street or sidewalk, and yet attempted to pass it when, on account of the darkness or other hindering causes, he cannot see so as to avoid it, takes the risk upon himself. Defendant's instruction No. 13, also refused by the court, was that, if at and before the time of the alleged injury to plaintiff there was adjoining the sidewalk in question a low place in a vacant lot outside of the limits of said sidewalk, and if plaintiff had notice of the existence of such low place, and undertook to pass over said low place upon the said sidewalk with full knowledge of its existence, he was bound to exercise care commensurate with any danger that might exist by reason of such condition, and if he attempted to pass the said sidewalk and, on account of the known darkness or other hindering causes, he could not see the same, he took upon himself the risk of undertaking to pass over the sidewalk.

Eugene H. Bundy, Thompson & Thompson, and Forkner & Forkner, for appellant. James H. Bingham, Jesse R. Long, Wm. O. Barnard, Wm. E. Jeffrey, and George M. Barnard, for appellee.

GILLETT, J.

Action by appellee to recover for personal injuries sustained by him owing to the alleged negligence of appellant in failing to maintain a barrier between a sidewalk and an adjoining low lot. There was an amended complaint in two paragraphs filed, to each of which paragraphs a demurrer for want of facts was overruled. It is contended that the demurrer should have been sustained, for the reasons (1) that to constitute a good complaint for want of a barrier, facts must be stated showing a duty to construct the same, and that this must not be left to inference or conjecture; (2) that the complaint does not aver how low the lot was immediately adjoining the walk, so as to show that a barrier was required; and (3) that the complaint does not show a causal connection between the injury and the want of a barrier, in that it is not shown that appellee's fall off the walk was attributable to the want of a barrier, or that he would have been protected from falling had a barrier been maintained. It is admitted that both paragraphs of the amended complaint are the same, except that the second contains a direct averment of knowledge on the part of the town. We may therefore summarize the material averments of fact of the first paragraph as a proper preliminary to the consideration of said objections. After alleging the corporate character of appellant on, and for a long time prior to, the 4th day of March, 1905, said paragraph alleges that one of the principal streets of said town was Broad street, running east and west through said town, and traversing the main business portion thereof, which said street and the sidewalk thereon were on said day extensively used by the public for travel; that on the north side of said street, between Twelfth and Thirteenth streets, there was on said day, and had been for a long time prior thereto, a vacant lot, abutting upon said Broad street; that adjoining said lot on the west there was a large brick building, three stories high, known as the “K. of P. block,” and adjoining said lot on the east there was situated a large brick building, three stories high, known as the “Ward block,” and immediately south of said lot, and extending across the same, there was on said day, and for a long time prior thereto, a stone sidewalk; that some of the stones were rough and uneven upon the surface, and in laying and placing said stones the defendant so laid and placed the same, and allowed the same to settle down, so that some of said stones projected above and higher than the others; and that said walk, by reason of the rough and uneven surfaces and projections as aforesaid, was rendered unsafe and dangerous to the public that traveled thereon; that said lot naturally, and by reason of excavations made therein, was on said day, and for a long time prior thereto, much lower than the surface of the sidewalk, being in some places from 3 to 5 feet lower, and in others from 8 to 10 feet lower than the sidewalk, and that said low and excavated condition of said lot extended up to, and in some places under, the north side of said sidewalk, thereby making an abrupt and perpendicular descent from the surface of said walk to the surface of said lot, and that all of said conditions herein described with reference to said lot and the location and condition of said walk, and the locations of said buildings in relation thereto, existed on said day, and had continuously existed for a period of two years prior thereto; that by reason of said high buildings adjoining said lot, said sidewalk was rendered very dark in the nighttime, and that said sidewalk without any guard, fence, railing, or barriers separating it from said lot was rendered unsafe and dangerous for persons traveling and walking thereon (then follows an averment of negligence in respect to the failure to maintain a guard or barrier); that about 9 p. m. of said day said plaintiff while walking upon said sidewalk when it was very dark, and while in the exercise of due care, struck his foot against a projection in said sidewalk, or upon the uneven surface thereof, and, without any fault or negligence on his part, stumbled and fell from, over, and off said sidewalk and into the hole and excavation aforesaid in said lot, a distance of 10 feet, alighting and striking upon his head, etc., and that said injuries were caused wholly by the fault and negligence of the defendant in failing to place any railing, guard, fence, or barrier along the north side of said sidewalk as aforesaid, to his damage, etc.

Appellants' first point is too general to require us to consider whether the complaint is lacking in a showing concerning the existence of any particular fact necessary to create the duty to construct the barrier. The existence of a duty upon the part of the town might depend upon a number of facts, and it is not fair to this court, or to opposite counsel that what is really mere general assertion should be accepted as a reason. Pittsburg, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033;American Food Co. v. Halstead, 165 Ind. 633, 76 N. E. 251;Liggett v. Firestone, 102 Ind. 514, 26 N. E. 201. If we were to reverse this case upon some ground not specified, we should have no assurance that we had done so upon a ground that was in the mind of objecting counsel. Our inference, from the citations in support of the point is that it is claimed that the want of a barrier is not shown to have been a proximate cause of the injury, and that the relation of the lack of a barrier to the injury cannot be shown by inference. With this explanation we shall proceed to consider the objections. It is true that the complaint does not predicate negligence upon the unevenness of or the projections in the sidewalk, nor does it alleges that appellee stumbled upon one of the projections theretofore referred to in the complaint as making the sidewalk dangerous. The complaint does, however, allege that by reason of the adjoining high buildings the sidewalk was rendered very dark in the nighttime, and that without any guard or barrier separating it from said lot it was rendered unsafe and dangerous for persons traveling and walking thereon. It is further alleged that the low and excavated condition of the lot, theretofore more particularly described, extended up to, and in some places under, the sidewalk, thereby making an abrupt and perpendicular descent from the surface of the sidewalk down to the surface of said lot. There is an...