59 Ind. App. 613 | Ind. Ct. App. | 1915
Lead Opinion
Action by appellee to recover damages for personal injuries sustained in a fall alleged to have been caused by defects in a sidewalk in the city of East Chicago. Verdict and judgment for appellee in the sum of $6,000.
The errors assigned and not waived are the insufficiency of the complaint, the ruling on the demurrer to the complaint, and the overruling of the motion for a new trial. Appellant argues that the complaint is insufficient by reason of the following: (1) that it does not appear from the averments that the defects in the sidewalk complained of resulted^ from the failure of the city to perform any duty incumbent on it; (2) that the complaint does not charge appellant with knowledge, actual or constructive, of the existence of such defect for a sufficient time prior to the injury that by reasonable diligence the city might have remedied it; and (3) that the proximate cause of the injury, as disclosed by the complaint, was the absence of light upon the street and in the vicinity of the defective conditions, and that the lighting of the streets is a governmental function, upon a failure to perform which actionable negligence can not be predicated.
An examination of the decisions cited above will disclose, as stated in City of Fort Wayne v. Bender (1914), 57 Ind. App. 689, 105 N. E. 949, that, as a rule, the statutes of other states requiring that such a notice be given, “provide in substance that the notice shall state the time, the place and cause of injury, without any qualifying words, while the statute of this State provides for the giving of a written notice containing a ‘brief general description of
We would not be understood as holding it to be important that the city officials had or could have had extraneous information respecting the place of accident. On the contrary, we do hold that the notice itself, unaided and unsupplemented by such outside information must be sufficient and sufficiently accurate to that end. Touhey v. City of Decatur, supra. It is, therefore, unimportant whether the city officials from any such extraneous source in fact did know the exact place of the accident. The inquiry is
Appellant contends that the evidence shows affirmatively that appellee was guilty of contributory negligence. Briefly the facts are as follows: Appellee had lived for six years on lot 25, being near the locus in quo, during the last three to six months of which the hole was in the sidewalk. She testified that she had used the sidewalk frequently, and was familiar with it, and that she presumed she could have seen the hole had she looked, but that as she walked along, she was not looking at the ground, and that she was not thinking of whether there was a hole in the walk; that she knew there were holes in the walk west, but had no knowledge that there were holes in the walk east of her house; that it was about dusk when she stepped into the hole and that trees cast a shadow over the place; that a kitten was following her; that a dog which habitually chased eats approached from the rear; that fearing for the safety of the kitten, she was watching it and the approaching dog, and finally in turning with the intention of going back home, she stepped into the hole, twisted around and fell with her foot fastened. Appellee’s examination taken before the trial was read in evidence. A part of it as set out in appellant’s brief, is as follows: 1 e Q. You knew there were several holes in the sidewalk along that location? A. 'Well, I suppose so, I don’t remember. Q. * * * You knew there was an imperfect walk; that there were holes there? A. Yes, I suppose so. Q. * * * How long do' you think you knew that there was more than one hole in that walk, and that there were holes both east and west of your house in
Here the jury in answer to interrogatories found that appellee had no previous knowledge of the existence of the hole in the sidewalk. It is argued, however, that such answers are not sustained by 'the evidence. In our judgment the question of whether appellee had such knowledge v/as, in consideration of the state of the evidence, for the determination of the jury. As indicated, the jury found in appellee’s favor on that proposition. But assuming that under the evidence the jury should have found otherwise respecting appellee’s knowledge, the particular finding complained of is not controlling. Sievers v. Peters, etc., Lumber Co. (1898), 151 Ind. 642, 656, 50 N. E. 877, 52 N. E. 399; Frank Bird Transfer Co. v. Krug (1903), 30 Ind. App. 602, 613, 65 N. E. 309. Considering the nature of the obstruction, the at least partial darkness, the fact that appellee did not have in mind whether the sidewalk was defective, the temporary diversion of her attention, together with her prior knowledge or ignorance, as the case may be, of the defective condition of the walk, and in our judgment, the question ©£ her contributory negligence was, under decisions hereinbefore cited, one of fact for the jury, under proper
Rehearing
On Petition foe Eeheaeing.
The action of a trial court in passing on a motion for a new trial containing an assignment of excessive damages is reviewable by the courts of appellate jurisdiction in this State,' and such courts are authorized to reverse and direct a new trial in a proper case where the damages assessed -are found on appeal to be excessive. As a practical proposition, the power to determine that damages assessed are
Except as to the element of an excessive recovery, there is no error in the record for which there should be a reversal. Under the circumstances, it is our judgment that the ends of justice will be attained by permitting appellee to remit. The petition is therefore granted, and the mandate modified to the effect that it is ordered that if within twenty days appellee shall file in this court a remittitur in the sum of $1,500, to be effective as of the date of the judgment below, the judgment will be affirmed for the residue in the sum of $4,500; otherwise, the judgment will be reversed with instructions to the trial court to sustain the motion for a new trial; costs in either case against appellee.