20 Ind. App. 672 | Ind. Ct. App. | 1898
The appellee was the plaintiff in the lower court, and prosecuted this action to recover damages resulting from an injury received by falling into an excavation or trench dug in a certain street in the city of Alexandria. The action was begun in the Madison Circuit Court, and in addition to the appellants, one Walter Fleming and the Alexandria Water-works were made defendants. The defendants separately demurred to the complaint, assigning as cause that the complaint did not state facts sufficient to constitute a cause of action. These demurrers were overruled, and the defendants each excepted to the ruling thereon. The defendants separately answered. These answers were each general denials, there being no other answers filed. The venue was changed to the Delaware Circuit Court, where there was a trial by jury and a special verdict returned, wherein appellee’s damage was assessed at $3,000.
Motions for judgment upon the special verdict were' separately made by each party to the action. The motions of each of the appellants for judgment on the
Counsel for appellants, in their argument,first question the sufficiency of the complaint, which question was raised in the lower court by the separate demurrers of appellants directed thereto. The complaint alleges, that the Alexandria Water-works is a duly incorporated company under the laws of the State of Indiana; that the city of Alexandria is a duly incorporated city under the general laws of this State; that about the 1st of July, 1895, said city of Alexandria advertised for bids for the construction of a :svstem of water-works for said city, and that the Seckner Contracting Company was one of the bidders for such work, and that said bid was duly accepted by the common council of said city of Alexandria. Appellant, the said Seckner Contracting Company, duly assented to said acceptance; that on the 13th day of August, 1895, the said city of Alexandria, by its common council, adopted an ordinance granting a franchise for the construction of said water-works system
The complaint distinctly avers that appellants constructed a deep ditch across one of the traveled streets of the city, and that in the night time appellee, while carefully pursuing his way along the street, unmindful of the danger; and not knowing of such excavation, fell into thé same and received the injury for which damage is claimed. It is further averred that his said injury was caused wholly and entirely by the gross negligence of appellants; that the said trench or ditch was left open and unguarded by barriers in the night time, and “by means of said trench or arm being so negligently left open and unguarded, plaintiff (appellee) was accidentally and without fault on his part precipitated into said short trench or arm.” Appellants’ negligence and appellee’s freedom from fault are, we think, sufficiently alleged in the complaint. The allegations of the complaint also show a joint liability on the part of appellants to this appellee. Westfield Gas & Milling Co. v. Abernathy, 8 Ind. App. 73.
It is next contended by counsel for appellants that the lower court erred in sustaining appellee’s motion for judgment on the special verdict. The principal contention is that the verdict is insufficient to support the judgment because there is no finding therein that the appellants were guilty of negligence, and that the words “negligence” or “negligently” nowhere appear in the verdict.
The conclusion of negligence is not for the jury where a special verdict is returned. Board, etc., v. Bonebrake, 146 Ind. 317; Louisville, etc., R. W. Co. v. Lynch, 147 Ind. 165; Louisville, etc., R. W. Co. v. Roberts, 18 Ind. App. 538; Conner v. Citizens' Street R. W. Co., 105 Ind. 62; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Pittsburg, etc., R. R. Co. v.
Appellants objected to the introduction of many matters of record of the proceedings of the city council of the city of Alexandria. These proceedings all related in some manner to the construction of the water-works plant in said city. The court also permitted appellee to introduce in evidence the bond given by appellant, the Seckner Contracting Company, to the Alexandria Water-works, and assigned to the city of Alexandria. The American Surety Company was the surety on this bond. We are unable to see how appellants could have been harmed by the introduction of any of this evidence. It simply put before the court and jury all of the proceedings leading up to the actual work of constructing the waterworks plant, and its purpose was to inform the court and jury as to the relation which the various parties to this action bore to each other in such work of construction. A large part of this evidence might have been refused by the trial court because it was immaterial and was not necessary to establish any of the essential averments of appellee’s complaint, but its admission was harmless and no reversible error can be predicated thereon.
The evidence of the witness William Houston, which is objected to by appellants, was, we think, properly admitted. This witness was permitted to testify as to the declarations and complaints of appellee made to witness in regard to appellee’s suffering. It was said in the case of the Carthage Turnpike
The thirty-fifth cause assigned in the motion for a new trial is based upon newly discovered evidence, and is supported by the affidavit of a physician. In this affidavit it is made to appear that some five years prior to the happening of the accident by which appellee was injured, the said physician treated appellee for impotency, and that appellee’s genital organs were at that time diseased. It is contended by appellants’ counsel that this showing ought to entitle appellants to a new’ trial from the fact that $1,000 is by the jury, in the special verdict specifically allowed as compensation for injuries sustained by appellee to his genital organs, by which he became impotent. Waiving all other objections, that might be made to the showing-made by appellants under the cause, we are consider