Town of Winamac v. Stout

• Decision Date: 04 October 1905
• Docket Number: No. 20,631.,20,631.
• Citation: 75 N.E. 158,165 Ind. 365
• Parties: TOWN OF WINAMAC v. STOUT.
• Court: Indiana Supreme Court

165 Ind. 365

75 N.E. 158

TOWN OF WINAMAC

v.STOUT.^*

No. 20,631.

Supreme Court of Indiana.

Oct. 4, 1905.

Appeal from Circuit Court, Starke County; John C. Nye, Judge.

Action by Frank Stout against the town of Winamac. From a judgment in favor of plaintiff, defendant appeals. Case transferred from Appellate Court, as authorized by Burns' Ann. St. 1901, § 1337u. Affirmed.

W. W. Borders, for appellant. Guthrie & Bushnell, for appellee.

GILLETT, J.

Action by appellee against appellant to recover damages for negligence in the maintaining of a sidewalk. Error is sought to be predicated upon assignments of error drawing in question alleged rulings of the court below in respect to the first and second paragraphs of the complaint respectively, and also on the overruling of a motion for new trial. The complaint was in two paragraphs, and the objection urged against each of said paragraphs is it does not sufficiently appear that the alleged negligence of appellant was the proximate cause of the injury. Appellee's counsel make the point that appellant's demurrer to the complaint was joint, and that it cannot be given a distributive effect by means of separate assignments of error. Although the demurrer is styled a separate demurrer to the first and second paragraphs of plaintiff's complaint, yet there was no effort separately to question the sufficiency of each paragraph; the demurrer being based on the ground the facts set out in the first and second paragraphs of the plaintiff's complaint do not constitute a cause of action. It is clear that the demurrer is joint. Terre Haute, etc., R. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239;Silvers v. Junction R. R. Co. 43 Ind. 435;Baker v. Groves, 1 Ind. App. 522, 27 N. E. 640. The record does not bear out the claim that there was a demurrer to either the first or the second paragraphs of complaint, considered separately, and consequently the assignments of error in respect to the complaint are not well founded.

Objection is made that under the second and twelfth instructions given by the court appellant was prevented from having the benefit of the evidence of the plaintiff on the question of contributory negligence. The instructions mentioned are not open to objection. The mere fact that the court instructs the jury that the defendant is permitted to prove contributory negligence under the general denial, or states that the burden of proving that the plaintiff proximately contributed to the injury is upon the defendant, is nothing more in practical effect than a reaffirmation of the provisions of the statute, and may be given by the court without error. M. S. Huey Co. v. Johnston (at last term) 73 N. E. 996. In addition, we may state that the record shows that in response to the request of appellant the court instructed the jury that although upon the question of contributory negligence the burden of proof was upon the defendant, yet that contributory negligence might be inferred from the evidence of plaintiff. It is clear that appellant has not the slightest ground of complaint on this score.

It is urged that the court erred in refusing to give an instruction on the subject of assumed risk; the instruction being based on language used by this court in Bruker v. Town of Covington, 69 Ind. 33, 36, 35 Am. Rep. 202. Appellee received his injury in the nighttime, while passing over an alley crossing consisting of four planks laid lengthwise. One of the inside planks had been broken, or...