12 Ind. App. 490 | Ind. Ct. App. | 1895
This was an action brought by the appellee, plaintiff below, to recover damages for personal injuries sustained by a fall in passing over an alleged defective alley crossing in the city of Bluffton. In the city of Bluffton is a street known as Wabash street, running east and west in the residence portion of the city. On each side of this street there is a sidewalk, and cross
Appellee resided in the immediate vicinity, and she testified that she passed over this crossing about one month before the accident, and that when she went aver the crossing oil’ the occasion when she was injured she knew the hole was there “but didn’t think of it at the time.”
The only fact found by the jury in relation to the care exercised by appellee at the time of the injury is that “she was walking slowly.”
There is no finding that she was walking carefully, or that she was using her .sense of sight, or that she was paying any attention to where she was stepping. It is true the inferential fact or conclusion is found that she “was passing along and over said place on said sidewalk and crossing with due care and caution,” but the only fact on which this inference or conclusion is based is that “she was walking slowly.” If it appeared that she had no knowledge of the defect, and that she was walking carefully and using her sense of sight, or that she had knowledge of the defect, and that she was paying attention to where she was going, and that she was proceeding carefully in proportion to the known danger, stating the reason, if any, that caused her to step into the hole, the special verdict would, perhaps, be sufficient to sustain the judgment in her favor. In any event, if such facts descriptive of her conduct were clearly and specifically found in the special verdict, they would certainly have an important bearing in determining the question of due care. Her knowledge that the hole was there does not necessarily defeat her recovery, but it is a material fact to be considered in connection with all the other facts and circumstances in the case in determining whether she was in the exercise of due care. It was in
In view of the fact that she admits that she passed over the crossing about one month before she was injured, and that she then saw the hole which afterwards caused her fall, and that she knew at the time of the accident that the hole was there, there should be, in order to entitle her to recover, something more in the special verdict, descriptive of her care and conduct, than the mere fact that “she was walking slowly.” Lyon v. City of Logansport, 9 Ind. App. 21; City of Bloomington v. Rogers, 9 Ind. App. 230; Trout v. City of Elkhart, 12 Ind. App. 343; City of Indianapolis v. Cook, 99 Ind. 10; Bouker v. Town of Covington, 69 Ind. 33; Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39.
After carefully reading the evidence, we entertain grave doubts as to the merits of the action, but have concluded that justice may be best subserved by ordering a new trial.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial. '