8 Ind. App. 590 | Ind. Ct. App. | 1894
The appellant brought this action against the appellee, to recover damages for injuries received by her, caused by an alleged defect in a sidewalk in the city of Lafayette.
The appellant, in her complaint, demanded damages in the sum of five thousand dollars, but upon trial of the cause, the jury returned a special verdict, in which her damages were assessed at one thousand dollars. Upon the special verdict of the jury, judgment was rendered in favor of the appellee.
The first question presented for our consideration calls in question the jurisdiction of this court. It is urged that this court has no jurisdiction of the cause, for the reason that the amount in controversy exceeds thirty-five hundred dollars, and we are required to determine which controls, the demand in the complaint or the damages assessed by the jury. Had the jury returned a general verdict for the appellee, the appellant’s damages would have been undetermined, and the demand of the complaint would be the amount in controversy, but when the amount to be recovered has once been ascertained and fixed it must control. When the jury determined that the appellant had been damaged in the sum of one thousand dollars, the amount in controversy became
The appellant assigns in this court, for a reversal of the judgment, the following reasons, viz:
1st. "Because the court erred in overruling appellant’s motion to strike out parts of the special verdict returned by the jury on the trial of this cause.”
2d. "Because the court erred in overruling appellant’s motion for a venire de novo herein.”
3d. "Because the court erred in overruling appellant’s motion for judgment in her favor, upon the facts found by the jury in their special verdict herein.”
4th. "Because the court erred in sustaining the motion made by appellee, for judgment in its favor, upon the facts found by the jury in their special verdict herein.” 5th. "Because the court erred in overruling appellant’s motion in arrest of judgment herein.”
When a jury returns a special verdict containing evidentiary facts, conclusions, or legal inferences, the court, in passing upon such a verdict and in rendering judgment thereon, must disregard such evidentiary facts, conclusions, and legal inferences, hence the overruling of the motion to strike out improper findings in a special verdict is not such error as will warrant a reversal of the judgment. Being improper, they neither add to nor take from the facts properly found, and if the verdict is sufficient without them they neither strengthen -nor ( weaken it.
A special verdict, in order to be sufficient to sustain a judgment in favor of the party upon whom rests the burden, of the issue, must find all the facts necessary to sustain such issue. Waymire v. Lank, 121 Ind. 1; Town of Freedom v. Norris, 128 Ind. 377; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327.
The special verdict returned by the jury in this case
The motion for a venire de novo was properly overruled, unless the verdict was ambiguous, indefinite, or wanting in form. This verdict is not open to any of these objections.
The third and fourth errors assigned may be considered together, as they both call in question the correctness of the courts ruling on the facts found.
The material facts found in the verdict, which we think, necessary to a determination of this case are, in substance, as follows: That the appellee, on' the 20th day of September, 1888, and for a long time prior thereto,, was a municipal corporation, organized under the general laws of the State of Indiana; that about sixty days-prior to said day a brick gutter had been constructed in the sidewalk, on Salem street, an improved and generally used street in said city of Lafayette, in front of the property of one Schuman, the gutter. having been built of brick, about eight inches long, four inches wide, two inches thick, so laid that the bottom of the gutter was from three and one-half to four inches wide, extending across the entire sidewalk; that bricks were placed on end on each side of the bricks so laid for the bottom of the gutter, at an angle of from twenty-six degrees at the lot line to nineteen degrees at the curb line, thus forming sides for the gutter, which was four and one-fourth inches deep at the lot line, and two and one-half inches deep at the curb line, and measured sixteen and one-half inches across the top at the inner or fence line, and nineteen and one-half inches- at the outer or curb line, the top of the gutter being on a level with the general surface • of the walk; that the gutter was so constructed that it did
A city is bound to maintain its streets and sidewalks in a reasonably safe condition for the use of persons travel-ling thereon. City of Lafayette v. Larson, 73 Ind. 367; City of Crawfordsville v. Smith, 79 Ind. 308; City of Washington v. Small, 86 Ind. 462; City of Michigan City v. Boeckling, 122 Ind. 39; City of Columbus v. Strassner, 124 Ind. 482.
In the case of City of Indianapolis v. Cook, 99 Ind. 10, the court says: “There are slight inequalities in sidewalks and other trifling defects and obstructions against which one may possibly strike his foot and fall, but if injury might be avoided by the use of such care and caution as every reasonably prudent person ought to exercise for his' own safety, the city would not be liable.”
Actual notice on the part of the officials of a corporation, of the defective condition of a street or sidewalk, is not always necessary, for notice may be inferred, when the facts disclose the unsafe condition of the street to have existed for such a length of time that the officers might, with reasonable diligence, have known it. City of Indianapolis v. Scott, 72 Ind. 196; City of Indianapolis v. Murphy, 91 Ind. 382; City of Aurora v. Bitner, 100 Ind. 396; City of Madison v. Baker, 103 Ind. 41.
And pedestrians may presume that the city has done
The jury found that the walk where the appellee was injured “was in a reasonably safe condition for use in the customary and proper way, by persons exercising ordinary care.” Nothing more was required of the city, hence its duty to the public had been performed. A traveler traveling thereon has no right to use it other than in the customary and proper way in which persons exercising ordinary care would use it. There were no facts found by the jury, from which the court could infer that the appellee was negligent.
In arriving at this conclusion, we have not overlooked the finding that the gutter was so constructed as not to afford a firm foothold to one stepping into it “and was likely to cause one using said sidewalk at that point to fall.” All the facts found must be considered together, and if they are not sufficient to warrant- the court in inferring negligence as a matter of law', the judgment rendered thereon in favor of the appellee is right. The burden was upon the appellant to establish facts sufficient to warrant an inference of negligence on the part of appellee, and if the facts found point as strongly to
There was no error in rendering judgment in favor of .the appellee, upon the facts found.
Judgment affirmed.