Trout v. City of Elkhart

• Decision Date: 12 March 1895
• Docket Number: 1,482
• Citation: 39 N.E. 1048,12 Ind.App. 343
• Parties: TROUT v. THE CITY OF ELKHART
• Court: Indiana Appellate Court

39 N.E. 1048

12 Ind.App. 343

TROUT v. THE CITY OF ELKHART

No. 1,482

Court of Appeals of Indiana

March 12, 1895

From the Elkhart Circuit Court.

Judgment affirmed.

J. S Dodge and O. Z. Hubbell, for appellant.

O. T Chamberlain and P. L. Turner, for appellee.

ROSS C. J. DAVIS and GAVIN, J. J., absent.

OPINION

ROSS, C. J.

This was an action brought to recover damages for injuries alleged to have been received by appellant by falling off a bridge, which was a part of one of the streets of the city of Elkhart, and was erected across a watercourse which intersected such street. The cause was tried by the court without the intervention of a jury, and a special finding of facts made with conclusions of law thereon.

The only specification of error assigned in this court is: "The court erred in its conclusions of law on the special findings."

A special finding, like a special verdict, in order to be sufficient to sustain a judgment in favor of the party upon whom rests the burden of the issues, must find all the facts necessary to sustain such issue. Buchanan v. Milligan, 108 Ind. 433, 9 N.E. 385; Kehr v. Hall, 117 Ind. 405, 20 N.E. 279, and cases cited.

The finding made by the court is as follows:

"1. The court finds that, on the 27th day of November, 1893, and for six years prior, there was a small bridge over a watercourse, on Calumet avenue, within the corporate limits of the defendant city, as alleged in the complaint.

"2. That this bridge was about fifteen feet wide and was covered with earth, and from its top to the bottom of the watercourse was a descent of two and one-tenth feet perpendicular on a slant of three feet; that this bridge afforded the sole and only means of crossing the watercourse on that street; that there was no railing or guards on the bridge to keep persons from falling off the sides, nor was there any artificial light at night which threw its rays to the bridge; that all of the foregoing facts were well known to both the plaintiff and defendant for the six years last past, and during all that time the plaintiff had been in the habit of crossing that bridge frequently, and it could readily be seen and located by her in the daytime, but when it was dark there was nothing to indicate its location.

"3. That said Calumet avenue, commonly called Rawlings street runs north and south, and for six years last past the plaintiff has resided on its east side about eleven rods north of said bridge; that on November 27, 1893, a little before dark, the plaintiff carried some milk to Mr. Todt's house, about six rods south of the bridge on the east side of the street, crossing the bridge on her way; that she remained lawfully at said house about one hour, and until about seven o'clock in the evening, when she started upon said street to go home.

"4. The plaintiff was then sixty-five years old, and in rather feeble health, but with good eyesight. As she left the house of Mr. Todt she had the bridge in mind, and walked out to where she supposed was the middle of the street, and went north towards the bridge. The night was so dark that she could not see the bridge, and the ground was wet and muddy; and while walking, as she supposed, in the center of the bridge, she went so near the east edge that she accidentally fell over it and down to the bottom of the water course, and broke her arm.

"5. That there were only two other ways that she could have taken to have gone from Mr. Todt's house to her residence, one of which was 206 rods in length and led across another similar bridge across the same watercourse, and the other was 73 rods long, and the road, for a large part of the way, ran across...