CITY OF EVANSVILLE v. Lehman

applying clearly reputable firm that a best account- shows figure ing at established standards available arrived depreciated “aggregate considerably at value” less than $100,000.00. not This evidence was refuted finding opinion adequately in our sustains being This the case all of the Public Service Commission. system statutory were met a sale distribution tests County of Oxford to the Warren R.E.M.C. and Town approved. the order of the Commission is Judgment affirmed. J., Bierly, J.,

Faulconer, Hunter, Mote, P. Prime and C. Martin, J., Smith, JJ., participating. concur. Reported in 205 N. E. 2d 166. Transfer denied

Note. — E. 2d 308. N. et Lehman. al. v. of Evansville 20,252. Rehearing denied Filed October 1965. [No. April 12, 1966.] Transfer denied 1965. December George Bar- Matthews and C. Salm, Robert S. Jerome L. Donald appellant, City of Evansville. nett, of Bamberger, Foreman, Hahn, of and Oswald and R. Raiser Corporation. Whirlpool appellant, Evansville, for McCray, of Clark, & McCray, Statham Rice & Vanstone appellee. Evansville, for judgment rend- appeal to us from a comes J. This

Mote, Court, Pike with in the Circuit on a verdict ered regular presiding. Nixon, judge thereof, Lester Honorable Vanderburgh The case had been venued to that court from County. The issues the trial court were formed complaint paragraphs and amended answer two filed appellant Whirlpool Corporation; 1-3, the first under Rule alleged the second in appellee which it (plaintiff was below) negligent operation was of the vehicle motor command; guilty under negli- his that he contributory was gence ; appellant, Whirlpool and that Corporation, had no liability; City and the para- Evansville answered in two graphs, paragraph being the first under Rule 1-3 of the Su- preme Court, paragraph alleged and the second affirmatively appellee guilty negligence contributory was he in that operating speed thirty-five the said vehicle at a between (35) forty-five (45) per Plaintiff-appellee miles hour. reply filed under Rule paragraph 1-3 the second of an- City swer of Evansville and a similar reply to the paragraph second Whirlpool Corpora- of amended answer of tion. opinion appellant

Henceforth in this we shall refer to the Whirlpool Corporation “Whirlpool” and to “City.” of Evansville “Evansville” or Appellee sixty-six (66) interrogatories, submitted some one or two which later were amended and answered Whirl- pool under oath.

Appellee appellants (11) also submitted to both eleven in- terrogatories, amended, at least one of which later approximately (101) parts. one hundred one different appear Answers thereto to have been settled made. sought Appellee judgment against and recovered both appellants Thirty Thousand, in the sum of Five Hundred Dollars, personal injuries ($30,500.00) which he sustained a result the collision the truck-trailer combination being operated by him with a then stake-bed truck owned by C. E. I. Railroad which halted & was in a line traffic semaphore designating bound lane east west a a “Stop” of Diamond Avenue at intersection angle Highway Indiana, 41. The the inter- U. S. with ninety quadrant ais bit more than the northwest section at degrees. (90) his combina-

Appellee approached had intersection with northerly into direction and drove from a tion vehicle green right though and, a direction arrow lane even turn right permitted proceed turn onto him to have would Avenue, stop halted a he was forced because Diamond alongside right lane, a truck of him in the turn vehicle ahead Highway on U. halted the lane of traffic S. likewise forth in the The then occurred are set No. 41. events which following testimony:

“Q. next occurred? What going changed south, light for traffic A. When wagon go proceeded I proceeded south across station right my to make turn. Q. ? have on the Diamond And been Avenue would Yes, A. sir.

Q. next occurred? What got turn, up my I to make when I to where A. As started flowing begin I noticed there was water I across right, to turn could of Diamond Avenue culvert on the surface and I into got, proceeded I don’t into the water and I up my many Avenue and how feet Diamond know my steering right jerked hit hole and did it wheel when it right, I under- didn’t know there was ice wheel neath began quick I could and I and as the water slide jacknife straighten up I began I I in a and was got straighten my thought brakes, I if I hit trailer I could straightened sliding, I had up I still the whole but was sliding I a line of automo- the ice and into outfit on . . .” biles long in a line E. I. halted & truck was The aforesaid C. up four lined rear of three or other vehicles traffic and intersection, appears sign and it stop the aforesaid at knowing halted with a vehicle appellee, a collision im-. Avenue traffic on Diamond line of east-bound minent, colliding passenger and in order to avoid with a vehicle, attempted propel to drive and his vehicle combination in such manner in a as strike the said C. & E. I. truck glance designed and, doing so, manner in therefrom appellee’s cab of tractor struck the & E. I. truck C. stake-bed parts at the left front corner thereof and and of the members causing appellee’s cab, stake-bed truck smashed into thus personal injuries alleged him, complaint, and proximately negligence, caused the acts of al- likewise leged paragraph thereof, in rhetorical as follows: injuries the aforesaid and “10. That collision therefrom,

plaintiff a result sustained were caused proximate negli- solely as a direct and result of and them, gence defendants, this, and each of to-wit: (a) defendants, them, carelessly The and each of and negligently failed maintain the aforesaid sewer proper and safe condition. defendants, them, carelessly (b) The and each of and repair negligently failed to said sewer within a reasonable they knew, known, or time after broken. should have it had defendants, (c) them, carelessly The and each of and permitted negligently said Diamond Avenue to de- become dangerous fective and and unsafe to vehicular traffic. (d) defendants, carelessly them, The each provide warning negligently failed to vehicular dangerous, traffic of slippery unsafe condition said Avenue. Diamond (e) defendants, them, carelessly The each negligently inspect failed use care to reasonable sewer line.” given together legal cause, The with the including legitimate thereof, natural, effect inferences drawn, properly to be seem to indicate that on or before February 7, 1961, along a forced main 10 inch sewer line city Avenue, the north berm of Diamond street in the open per- broke connections, between thus mitting spread water fluid to be over sewer the north side Except for a few feet west of Diamond Avenue.

pavement Highway a de- No. 41 where there was on U. S. Avenue, pavement pavement cline on Diamond Avenue inclined to west therefrom on said Diamond west “good freezing, city or near for a block” and because sewage least, freezing fluid, temperature at times at persons, ac- frozen. This condition noticed several cording testimony appellee, from Febru- favorable to morning example, on ary February As an the 7th to 16th. sewage February 7, 1961, engineer a for saw ground pavement, the seeping onto the from the water sewage water, by noon date it to of that determined be superintendent plant had maintenance he called the Whirlpool There is and informed him of the condition. superintendent plant dispute mainte- call. The about this Whirlpool willing only say to that he did not nance of sewage engineer it, whereas, of Evansville remember the positive call made. made the assertion for Avenue remained The hazardous condition of Diamond repair days attempt sewer and no was made to several through sewage being to water or fluid forced or shut off sewage oozing and onto the This fluid out of the soil it. togeth- Avenue, pavement of the of said Diamond north side freezing the said of said fluid on the surface of er with the dangerous pavement, obviously situ- created an unsafe and properly could for traffic have ation motor vehicular which warning dangerous, require to to been found motorists prevailed from on or slippery condition which and unsafe aforesaid, February 7, perhaps more than as about February 16, 1961, until when sewer was a week and repaired. very sharp dispute par- between the

The record reveals appeal occurrence of the break the time and ties this as both, sewer, one, not neither in the to whether or as appellants defective situation that had notice of the However, obtained, indicated evidence. as as shown interrogatories propounded jury, answers we must defective, dangerous hold unsafe and situation did obtain February 7, 1961, from and appel- after and that February, day lants herein had notice thereof on the 7th Likewise, 1961. sharp dispute parties there is a between appeal concerning condition, whether this hazardous place well as the collision took under the circum- forth, stances herein set Highway occurred on U. S. or on Diamond Avenue in the of Evansville. The found in interrogatory answer propounded to an to it that defective, above mentioned condi- hazardous unsafe tion obtained Diamond Avenue and that the collision also sup- occurred on Diamond city. Avenue The evidence ports finding. such answer and

The evidence in this case is re- unrefuted the sewer ferred to sewage oozing herein and from which fluid was ground flowing surface of the onto the north side Avenue, private of Diamond property and owned exclu- sively by Whirlpool.

There was introduced in evidence a contract identified plaintiff’s and, omitting" Exhibit No. 6 resolution and signatures, it is as follows: “AGREEMENT BETWEEN THE BOARD OF COM- COUNTY, MISSIONERS OF VANDERBURGH INDI-

ANA, CORPORATION, AND REPUBLIC AVIATION USE GRANTING RIGHT TO CERTAIN PUBLIC HIGH- COUNTY, INDIANA, FOR WAYS IN VANDERBURGH OF CONSTRUCTING AND MAINTAINING PURPOSE SEWER THEREUNDER. THIS AGREEMENT: Made and entered into this 14th day May, 1942, between the BOARD OF COUNTY COUNTY, IN- COMMISSIONERS OF VANDERBURGH DIANA, PORATION, Party, First and REPUBLIC AVIATION COR- Party: Second

WITNESSETH Party, promise The First in consideration of the and agreement contained, kept performed herein to be and Party, payment and in consideration of the Second ($1.00) consideration, Dollar re- One and other valuable grants hereby acknowledged, ceipt unto which is Party, assigns, right lay, Second construct and successors approximately (10) ten maintain a sewer following street, along in diameter under and inches place Highway public County, or to-wit: located said City Diamond Avenue from the limits of the of Evans- ville, Kentucky Diamond Indiana to the intersection of northerly Eastwardly Highway #41, Avenues under and the of U. S. Municipal St. to U. S. then along Highway U. #41 center of said S. plant Party of the site Second located the East side George Highway #41 Road or the South St. crossing Airport and & North of the C.C.C. Co., Highway L. R. R. and said U. #41. S. upon map The location of or said sewer is blue shown print part attached hereto and made a hereof. agrees Party operations The Second surface that all connection with the and maintenance of construction said subject supervision shall be sewer at all times Party. control of the First Party agrees The Second further that in construction comply and maintenance of said sewer it at all times will with such orders directions as shall be made Party concerning First the method of the construction and times, maintenance of said sewer and that it will at all therewith, comply connection all with orders of the First Party, and the Statute of the Indiana. State of agreed It is between Parties hereto that failure Party, upon writing, of said Second reasonable notice comply department said any Party, proper with order of the First or other authority, concerning the maintenance of sewer, right Party the First shall have the either appropriate legal proceedings any or in other man- lawful rights granted and ner, hereby forfeited, to declare the compel Party the Second to remove said from the sewer said street above described. grant subject complete This is made to the full and highway proper control of the said above described County, of said who shall at authorities time have the the

right grade regulate highway change the use of may public require. thereof as convenience Party And for the same consideration the First does grant Party, hereby also unto the Second its successors right assigns, premises enter and the said area and purpose described, at all reasonable times for above removing maintaining repairing, inspecting, and of sewer, however, supervision subject, of to the control Party. said First agreed fran- by It is between the Parties that agreement rights hereunder and liabilities chise accruing Party may be imposed upon to and Second Corpora- assigned Party by to Defense Plant the Second tion, Washington, of D. C.” title, Whirlpool, a of chain The record reveals that disputed acquired ownership and it the sewer It obligations set therein forth. was bound appears of the contract to be obvious that at time 14, 1942, May the limits within Diamond Avenue was not the time and before but thereafter proceeding Diamond Avenue and involved in this the said abutting property the intersection or near around question annexed to Evansville. approach an the action court

In to the trial of the trial gave (5) preliminary At the conclusion five instructions. appellee’s filed for directed evidence Evansville a motion (A) Instruction for to return verdict and submitted appellants. for said This motion and instruction verdict Also at the conclusion of the evidence Whirl- were refused. requested pool a for directed verdict and filed motion C, (lettered) giving peremptory instructions numbered conclusion D, E, requests were made F at the and G. Similar were of the evidence and number instructions all appellants with directed verdict each of tendered verdicts, all of for directed which were filed instructions appear to have been refused. Motions were addressed specification court, requesting every that each and to the alleged complaint negligence in the should be withdrawn denied these were the consideration from trial court. jury, appellee ten- the case was submitted Before twenty-two requested (22) instructions be dered given. 5, 16, 17, 18, 1, 8, Said 20 and instructions numbered give 21 were The court refused to instructions withdrawn. 4, 11, gave by 13 and 19. The tendered court instructions appellee 2, 3, 6, 7, 9, 10, 12, 14, 22, numbered 15 to all except 6, 3, objected which 14 instructions and 15 were by appellant objections to Whirlpool, which were overruled. giving twenty requested

Evansville tendered and (20) 1, 2, instructions. Instructions and 5 with- were 13, 14, drawn. The court 3, 11, 12, 15, refused instructions 16, gave 18 and 19. The 7, 8, court 6, instructions numbered 9, 10, 20, appellee objected 17 and to Number 7 and was Whirlpool requested giving overruled. tendered and sixty-two (62) instructions. It withdrew instruction Num- give ber 52. The court refused to 5, instructions numbered 12, 20, 22, 29, 32, 40, 43, 46, gave 49 and 60. The court in- 4, inclusive; structions numbered 1 to both 11, 6 to both inclusive; 19, inclusive; 21; 13 to both 28, numbered 23 to inclusive; 31; both 30 and 39, inclusive; numbered 33 to both 42; 45; 48; 41 and 44 and 51; 47 and 59, to53 both inclusive; and Appellee objected 61 and 62. giving to the a number of by instructions Whirlpool tendered given court, objections which were overruled and which will objected not be further noticed. appellee’s Evansville in- 2, 7, 9, 10, 12, 14, structions numbered 15 and and it objected likewise instructions tendered co-appellant, Whirlpool, 15, 16, 48, 57, 58, to-wit: 59 and objec- tions overruled were the trial court. We believe we have succintly possible forth as set the record which will require mention the balance opinion. of this However, doubtless will refer to we certain evidentiary other matters in our discussion the asserted errors.

Judgment having been entered on verdict, Whirlpool duly filed motion for a new trial containing fifty-three (53) specifications, some of which have parts numerous thereto. motion Evansville’s for a new trial forty- contains (47) specifications. seven The trial court overruled both overruling assigns appellant

motions, error and each of its said motion. argument I

Appellant Whirlpool into its Parts divides argu- VIII, inclusive, its Evansville divides both appel- IX, commend both inclusive. We ment into Parts I to attempting answer lee’s counsel for efforts appellants grouping said contentions contentions of both though according con- subject matter. Even similar, appellants remarkably in order tentions of both are opinion certainty of answer will be devoted to maintain assigned Whirlpool’s and then Evansville’s first to errors assigned adapt errors, trying to the latter former reasonably possible. wherever

Appellant Whirlpool refus- the court erred in contends that ing favor, to a in the is direct verdict that verdict not Ap- evidence, contrary to law. sustained sufficient is pellant (6) specifications of its relies different six argument, support motion for trial as follow: new in of its jury not the sustained of sufficient 1. The verdict Trial) (Specification No. of Motion New evidence. jury (Specifi- contrary to the law. of 2. The verdict Trial) for New 2 of Motion cation No. overruling request in motion and erred the The court 3. give jury the of appellant to the at conclusion to of said peremptory appellee a of instruction in chief the evidence appellant. (Specification in of said a favor to return No. 7 verdict Trial) of Motion for New refusing give to the at in to court erred 4. The appellee in of of evidence chief a conclusion to return a verdict in favor of said instruction peremptory (lettered) said instruction numbered appellant, which Trial) 8 Motion for New No. of (Specification A. overruling request in the motion and erred court 5. The give jury at of appellant the conclusion to of said peremptory instruction to return a verdict all evidence (Specification appellant. 19 of Motion of No. said in favor Trial) for New give refusing to at erred court 6. The peremptory evidence a instruction all the conclusion appellant tendered to return said a verdict favor appellant, (let- said which said instruction was numbered tered) (Specification Trial) B. of Motion for New appellant Said then asserts that since the above causes present substantially question, they grouped are same argument supported by (e) conformity one with Rule 2-17 Supreme of the Rules of the Court Indiana. appellant says

Said this cause should have not been jury; appel- submitted is no there prior lant or knew should have known the broken sewer February 9, 1961; the date of collision on and inasmuch negligence disregard duty or involves some act act, charged person negligence not to cannot be with unless knowledge it is actual or established that he had constructive duty the facts out which the it arises. And further knowledge asserts it had actual constructive broken at the date and time of sewer the accident and there- duty acting. fore had no refrain from act or points inclusive, only Under 1 to both said not attempts categorize analyze, evidence, criticize and but legal support principles cites authorities to form a basis support for its conclusion ad- contentions vanced hereunder. herein, It is clear that the record legitimate evidence and the natural inferences to be drawn support do appellant’s therefrom contentions. While may admitted, it be as in other case which is submitted jury, might properly a that it and could have found for either appellant, them, or ample both of there was evidence to re- quire cause be jury, the submitted to both at the close appellee’s of evidence and at evidence, the close of all of the express and we further the view that to have directed a ver- request dict at either referred to appellant, time at the of said harmful, prejudicial have been would and reversible error. found, properly The it evidence, could find under the sewer, private appellant, that a owned said broke between sewage seep sections, permitting there- liquid thus fluid immediately top from and onto ooze of the soil Avenue; it flowed pavement north of the on that Diamond portion pavement onto the north on Diamond Avenue, perhaps freezing thawing times at different permit day, causing would thus a condition which dangerous to the jury to ascertain and it was decide was public appellee particularly. The evidence traffic and on jury properly condition such that find that could city Evansville was within limits of Diamond Avenue days February 7, 1961, before made known to on two injuries appellee. collision which caused the find that The sufficient evidence to record reveals City of place the limits of the Evans- collision took within Avenue, condition then ville on Diamond notice ample opportunity existing given, providing to remove perilous As we have said above conditions. hazardous engineer found, a sewer and as the so Holtz, condi- K. became aware Mr. Albert date, days February on that two before on 7th and tion appellee, injuries John Heumann notified Mr. collision true that Whirlpool him the condition. It and told telephone but not recall the conversation Mr. did Heumann me, is evi- There possible he called sure.” “it stated drawn inferences therefrom to be in the record and dence apprised people several other became show prior to the time various dates times at break sewer Casey matter, February 1961, and for that the collision 9th, testified, February at officer, Randolph, that on police A.M., as follows: 3:30 about forming ice and water and ice was “The water —the city good from, say I it is a forming way would all the city block from the intersection more than block, if not railroad up here where the Avenue back Diamond

41 and along through forming down there was ice is and tracks here.”

601 Randolph The record evidence reveals that officer told dispatcher Indeed, of send someone out to take care it. appellee’s Exhibit No. 9 is the record made and referred by witness Allen Wathen at the time he called the Water- Department February 9, works at 3:45 A.M. on about a broken main on Diamond Avenue.

Appellee that fol- states the record evidence reveals the lowing: “On February 7, or before main sewer a forced lying city Avenue, under Diamond a in street Evansville, broke, causing spread sewer water to be over good street. The city water was tracked for a block west Highway U. S. weather, it because of the froze. This condition persons was noticed several from Febru- ary February 7th to 16th. morning February engineer

“On the 7, 1961, a sewer (Mr. Holtz) Appellant City for the Evansville saw the seeping pavement, water from the determined to be sewer Superintendent water and plant noon had called the Appellant Corporation maintenance Whirlpool of the informed him of the condition.

“The hazardous on condition Diamond Avenue remained days attempt the same repair for several and no was made to sewer, causing to shut off the which sewer water was defective, dangerous Diamond Avenue to become unsafe and traffic, to vehicular dangerous, to warn motorists slippery and February unsafe condition until when repaired.” By appellee sewer was footnotes has cited the pages transcript support lines these statements. hesitancy concluding Thus we have no in there was support interrogatories pro- the answers pounded jury: (1) the sewer leak referred to pleadings highway and in the evidence was not part highway system which was the state of the state of Indiana; (2) no high- there leak was sewer state way; (3) pleadings the collision referred to in the highway occur the evidence did Indiana. highway system

part state state concluding hesitancy Likewise, that there we have interrogatory pro- to an to answer sustain concerning the sewer pounded the break in jury when to the Highway 41 first was U. at Diamond Avenue and S. being “Tuesday, Whirlpool, to the answer made known jury interrogatory propounded to the This 2-7-1961.” request Whirlpool. at the other, or appellants, one or the

The record reveals both, records into evidence some weather submitted involved, implying that period vicinity of Evansville for freezing temperature. Apparently the no time was there a at freezing tempera- jury could have found that there was ture, evi- obviously direct it did not find. There but so support proposition that there was in the dence record to freezing pavement. and formation of ice on said certainly con- it

From we have said follows what Whirlpool a favorable answer tentions of cannot receive part of the brief. under in which appellant’s brief next Part II said

We arrive at refusing to withdraw trial court erred in asserts that it jury. In negligence allegations from certain specifications upon this, appellant relies said 1, 2, 21, 22, 23, 24, for new trial numbered motion specifications 26, 27, 28, Apart of its 30. from the 29 and brief, trial, of its forth Part I for a new set motion instructions referred to the attack certain in addition trial, new specifications in motion for in said referred appellant all the instructions asserts charge negligence each would have withdrawn above present appellant Whirlpool, these sub against and since supported question, they grouped are stantially same appellant’s argument. largely, assertions here Very by one argu Part I. This under to its assertions under are similar reasserting may there was answered be ment evidence, chief, both in rebuttal, answer and in that said appellant repair did fail to by permit and maintain its sewer ting the surface of Diamond Avenue to become defective and failing unsafe, by to warn vehicular traffic on Diamond Ave existing nue of condition, by failing inspect line sewer after stated, notice. As above the failure on the part appellant to maintain the sewer and to fulfill its obligation therefor, contract occurred after it notice received February 7th, days on resulting two before the collision and injuries appellee. dealing We are not here with the sub proposition mission of on which there was no evidence. It was for the whether, determine after February 7, 1961, notice repaired received it the sewer thereafter, within a reasonable time and the contentions contrary argumentative merely are appellant’s argument seems to us that that Evansville had exclusive highways control over the streets and within its delegate corporate duty limits and cannot repair the to and streets, maintain part such creates a dilemma on the of this appellant. argues pro It respect. both and con in this Of course as decided Wickwire et al The v. Town Angola (1892), App. 253, 4 Ind. 30 N. E. has the con trol of streets and sidewalks within its limits and to is bound keep exercise reasonable care to them in a safe condition for travel, liability delegated and that such cannot be or trans However, case, ferred to another. we of no know none and cited, has been which holds that one appellant, situated as this sewer, contract, owner of the under its above, Exhibit 6 jointly liable, cannot make itself jointly and liable with as to party, Evansville some third appellee. such as We are considering question not here appellant of which is liable appellee. considering joint to are liability We of these appellants. ownership Whether under its contract and the predecessor liabilities assumed under the contract of its primarily liable, ownership, appel it is as between the two lants, Again, part is not for us here to decide. under this begs question argument, appellant there because

its this appellant had actual is evidence which established that said knowledge jury it to de of the break and was for the sewer termine, facts as under all the and circumstances shown drawn, to inferences therefrom whether be alleged negligence appellant guilty of com in the said was respect appellee plaint may It assumed to the herein. be duty purpose opinion had of this may inspection sewer, and further make an it be its inspection have break that an would not revealed a assumed notice, evidence re in the sewer at least until it had as the have, care there it did or not acted veals whether with negligent after, not it failure to take or whether or was necessary appropriate steps which to correct the situation caused, was a matter for the the break its sewer determine. there

It must be remembered was break through break, seepage sewage sewer, and the fluid said top oozing of the on the north of the fluid soil sewer extent it flowed onto of Diamond Avenue such side causing thereby Avenue, the north pavement Diamond dangerous and, above Avenue become side of Diamond to, perilous flow of created circumstances referred in the lane of said Diamond Avenue. Cer- traffic westbound tainly, not the immediate the break in the sewer was cause freezing thawing condition; perilous of the flowing sewage fluid, liquid pavement onto was water perilous condition immediate cause hazardous dangerous to the use the traffic flow and appellee Avenue herein. The Diamond events, by this chain of as the evi- to consider shown entitled appel- liability, any, if dence, these and to determine whether, evidence, lants, after notice shown they them the due care each of exercised and reasonable or may require Indiana them to use under such the law of that

605 say To circumstances. that evidence the. does not disclose pipe respect sewer was in wise defective and duty reason inspect, simply thereof there was no does appellants, state the true facts. notice With to each of discloses, jury the record was entitled to determine notice, whether or not from thereafter, such time of party duty repair, either a had and whether or not either party ordinary prudence acted preventing with and care in an by appellee. occurrence such as that encountered

In Whirlpool’s giving Part III of it attacks the brief requested by Instruction appellee, relying No. tendered and upon Specification 31No. of the Motion for New Trial. Said Instruction 2No. reads as follows: required every upon “It is not material fact plaintiff bases his cause action be established positive direct and evidence order him to to entitle recover, legitimate province it is but within jury to reasonable natural draw inferences from the proved by preponderance and circumstances a fair facts the evidence.” objections

Hereunder, forth its sets stated judge upon the trial and then first court relies objections support 1 2 second with Points objection. objection, support first and Point 1 its second objection The first is as follows: “1. reason that Instruction No. for the erroneous improperly jury respect it of the matter advises with recovery. inferring a it is not facts essential While evidence, necessary proven a fact be direct supplying is essential there direct be grounds inference of facts essential reasonable for the permit however, recovery. Instruction would upon facts an inference an inference because draw inference, and, may proved by an and circumstances be natural

therefore, draw reasonable and before the can facts inferences, evidence of there must be direct and, therefore, in- are to be drawn which such inferences in error.” struction number objection follows: is second

The misleading Furthermore, con- and instruction is the “2. unintelligible it fusing wholly for the reason and jury to be what is purport not to indicate to the does established ly drawing not of a reasonable and natural way mere- by The instruction of an inference. legitimate provisions of says jury the has the it does inferences but reasonable and natural way by jury drawn purport is to be to tell the what law and under inference may recovery only which be it to a the facts essential upon the supplied by evidence from the direct inference subject.” appellant rely objection expressed Said does not the third in the trial court. proposed in-

Care must be used to whether determine law, it contains whether struction an statement erroneous applicable and issues tendered proposed also, particularly, adduced and whether such may jury. often has instruction tend to mislead the It throughout in con- by Nation that been held our courts sidering non-mandatory validity of a instruction the light given court shall consider it in of all the instructions purpose ascertaining has been for the whether adequately body fairly provided involved law with single evidence, instruction shall under the issues and judicially whipping post if be made a it can be determined fairly impartially Not instructed. were opinion, proper only 2, is this in our Instruction No. general validity, also, instruc- meets the test as to its but objections tion, it, necessary or one similar to and the already expressed by appellant taken. We this are well sixty-two (62) pointed appellant tendered out that this have instructions, (1) and eleven one of which was withdrawn appears forty (40) (11) were refused. Thus which given appellant by this were tendered instructions pointed appellee tendered out above that also have court. We instructions, eight (8) twenty-two (22) with- were appears It court. (4) refused four were drawn and by appel- originally (10) tendered instructions that ten then complains giving appellant given, of which this lee were instructions, numbered particular Instructions to-wit: these fact, in this 7, 10, In attacks 12 and 22. (10) giving (6) out of the ten appeal instructions six given appellee court. tendered giving ap- appellant’s brief attacks Part of this IV upon Specification 32 relying No. pellee’s No. Instruction as follows: Motion for New Trial. Said instruction is of its through corporation acts its instructed that a “You are servants, agents, liable for their employees, and and is acting performed negligent scope as in the while acts or omissions duty employment line of their and in the of their such.” objections appellant the first and second

In raises its brief single point thereto, depending upon under each said ob- a objection jections. follows: The first is as proposi- an Instruction No. 7 constitutes abstract “1. specific applied any issues or of law and tion giving of in- action and the facts involved struction this error since there is no constitutes reversible jury’s attempt attention to or direct the acts omis- alleged plaintiff’s complaint.” sions objection The is as follows: second “2. No. 7 is erroneous inasmuch as it does Instruction any charged purport not plaintiff’s complaint to refer to or omissions acts cor- and while both defendants are they porations cannot be held act or acts of liable charged any agent, employee or servant not the com- giving plaint of an abstract and the statement law such only contained in Instruction No. 7 can serve to con- as is jury.

fuse regard objections appear to The other have been waived. We legal merely stating principle Instruction No. as a which is appeal this because applicable this and, as according corporation private agents, employees and through only such, its can act are, in- employees agents, and servants servants, and such corpora- liability fact, only can create ones who or omis- negligent acts they work, their tion for whom “for employment scope acting performed in the while sions law, un- as we duty as such.” This is the line applicable to the and is it, instruction was derstand this lengthen only to would serve remarks case at bar. Further opinion. giving brief, questions the appellant’s In Part V of said by appellee, requested tendered and of Instruction Trial. Specification for New of Motion the 33rd which is No. 9 reads follows: Instruction Said Lehmann, plaintiff, Earl is seek- “9. In this action damages deféndant, ing both the Whirl- from recover defendant, City Corporation, pool and the by charging negligence certain acts that each of them committed injury. cause him contributed to one you defendants committed If find that each charged complaint, negligence in the more acts of negligence proximately contributed and that such acts charged injury plaintiff, in the com- as to cause plaint, to the escape liability to recom- defendant can neither injuries plaintiff the pense the caused on the for thus ground that the of the other also contributed to such acts damage resulting injuries from or that the his acts alone apportioned cannot be under the evidence.” objec- (6) Appellant in six different sets forth its brief why Instruction No. 9 erroneous- tions and reasons said given, only upon ly but relies first second thereby objections appeal. in The are other four objections as Its said No. and No. waived. are follows: paragraph thereof, in the “1. Instruction first erroneously seeking jury plaintiff that advises the is damages theory from each defendant on the

to recover of them contributed to committed certain acts which each contrary plaintiff’s injury cause the is to the ex- which allegations charged press complaint of the guilty negligence prox- of certain each defendant is imately acts of causing injuries complained of. The instruc- an erroneous tion therefore constitutes statement charges plaintiff’s complaint made therefore er- is misleading into the belief that roneous plaintiff charging having merely each is defendant with injuries complained to the contributed ing such rather than hav- proximate committed acts which constitute a cause injuries. “2. Instruction for the reason that No. 9 erroneous they advises find that each if should negligence the defendants committed more acts of one or charged negli- complaint in the and that such acts of gence proximately plain- injury to cause to the contributed tiff, escape liability recompense neither can defendant plaintiff injuries grounds thus caused injuries. that the acts of the other also contributed such Indiana, recovery against Under the law of there can be no pre- either defendant unless the evidence established ponderance guilty of the evidence that such defendant was negligence supported by of an actionable act of subject negligence proxi- on the and that act of was a such injuries complained mate cause of the To of. establish negligence merely defendant contributes to injury cause an sufficient under the of Indiana.” law objections giving The above of Instruction No. 9 objections cannot be These sustained. are not consid- presenting invalidity ered as of said instruction. We reasonably conclude that proper, the said instruction was applicable to the evidence and to the issues and contains a applied appeal. correct statement lawof to the case on objections any are not able to find We the said valid rea- rely- son of this for reversal cause. Should the be ing objections, other than its first and second above set forth, expressed objections, or on the other four hold we first, objections decide, succinctly that said were not second, pointed and, out that no error was committed court, giving objections, trial said instruc- tion. brief, appellant’s that it contends to Part

As VI by ap- requested 10, giving tendered and Instruction No. four different pellee, erroneous and sets forth was designated upon as objections. However, is it relies what attempting point objections, one with first and second attempting sup- objection points support the first and six objection. is follows: port The instruction the second you preponderance of all the from fair “10. If find alleged accident, at the time of that negligent in one or more careless and defendants were charged you respects plaintiff’s complaint, fur- and preponderance of all the evidence find from a fair ther injured respects plaintiff in one or more alleged substantially complaint, his said negligence part of defend- carelessness or on the the of such sustaining in- proximately such ant contributed juries, himself, of said plaintiff, at the time contributory guilty alleged accident, negligence, act or acts no justified finding you for the then would be fairly awarding damages plaintiff and such as would him endured, if injuries compensate sustained and him for his $50,000.00.” any, sum not exceed the correctly appli- hold that instruction We states the law furthermore, cable to the issues and evidence and hold we mandatory it not is character. It be will permits noticed that said instruction preponderance find from a fair of the evidence certain plaintiff (appellee) fundamental elements then if guilty contributory negligence act or were acts of you justified finding plaintiff (ap- “then would be for the damages pellee) fairly and award him such as would com- injuries pensate endured, any, him for his sustained and if $50,000.00.” not to exceed the sum If the instruction mandatory, not, appellant’s and we hold that then objections Furthermore, could not be well taken. have we already appellants notice commented to both knowledge they had of the situation as it obtained beginning February period remain- from injuries ing collision and sustained up to time n give on the to failure appellee. have commented Also we not both any warning notice whether or after such and inspect after care the sewer appellants reasonable to used above, have said in the sewer. As we of the break notice constructive, knowledge, actual was no absence there appel- above, or not this whether and likewise have as we care and used due reasonable lant, as well by the and all of the shown under circumstances de- tendered, to for the were matters the issues under having adversely to determined matters been termine. Such Evansville, and character- appellant, their as well as appellants unfavor- ization of the evidence both considera- appellee, to be able is not countenanced to trial, by this motion for new and trial court of the tion of the fact, law, conclude appeal. and of we Court on As a matter legal tests meets all the and that Instruction No. 10 standard presented. testimony light and of the the issues Whirlpool appellant’s brief, er- Part VII asserts As to giving Specification 12 ror of Instruction No. in the under Trial, appellant presents No. of Motion New its objections court, presents made at the trial and here two consideration. them for our 12No. reads as follows:

Said Instruction you you “12. The Court instructs if find from only preponderance of the evidence that one defendant guilty negligence, negligence and that such di- rectly injuries proximately plaintiff caused the to the alleged complaint, you as plaintiff further find that proven allegations has all the other material charges you complaint, then the that he Court against you the one defendant entitled recover whom negligent negligence responsible and whose find for be injuries any.” plaintiff, if interpret if this instruction mean that were We only below, ap- one of the defendants or that both to find pellants herein, preponderance found of the evi- were

dence be liable under the issues tendered and the evidence adduced, perceive nothing find. We to be could so errone- ous about this instruction. appellant’s

In Part VIII of said it asserts that brief giving trial court erred in the Instruction tendered requested plaintiff, Specification and relies duly No. 36 of Motion for Trial. Said New objections (1) entered said Instruction numbered one (5), five both Its inclusive. said Instruction No. 22 reads follows: you preponderance “22. If from find fair the evi- dence, court, under instructions plaintiff you recover, is entitled then should determine damages sustained, any,

the amount of he has if from the pertaining damages. doing you may In such so take into plaintiff’s consideration the and nature which he has extent of physical injuries, any, if as a sustained proximate alleged negligence complaint of the result in the preponderance and a fair established of the evidence injuries, any, temporary perma- whether such if are or nent; suffering body mind, his and which he has en- may he dured endure future if he is yet cured, any, resulting physical if from such in- past juries, any; if his and future loss of inabil- time and ity work, any, resulting injuries; if from such expenses of all necessarily incurred, reasonable value any, if being injuries any expenses for treated such and preponderance which it a is shown fair of the evidence reasonably necessary to be incurred in the future attempting of the cure, any. a to effect if From a consideration enumerated, you may herein elements his assess damages compensation at a such sum fair as will be him, not to preponderance a fair evidence, as shown of the prayed complaint.” the sum exceed for observed, As will be this Instruction No. 22 has do with injuries appellee sustained, which the comment concern- ing which has not heretofore made in opinion. been this paragraphs complaint Rhetorical and 13 herein damages are follow: negli- proximate result and a direct “11. That as them, Plaintiff Defendants, each gence of the injuries: painful following permanent, suffered dislocated. knees were (a) of the Plaintiff’s Both fractured. foot was (b) Plaintiff’s left crushed. (c) ankle was Plaintiff’s left fractured. (d) left tibia was The Plaintiff’s fractured. (e) left fibula was Plaintiff’s lac- hands were Plaintiff’s (f) of both of the The backs erated. and con- was bruised

(g) abdomen That the Plaintiff’s tused. prior collision immediately to the aforesaid “12. That age of of the man and able-bodied the Plaintiff was a well occupation of truck pursuing years,

thirty-eight (38) Eighty earning approximately Hundred One driver Dollars in- of the per week, a result ($180.00) and as aforesaid, he been has juries, sustained as the Plaintiff until said collision the time of from unable to work much to earn as filing Complaint unable and will be of this per ($180.00) here- Eighty week Dollars Hundred One after. negli- of the proximate result “13. That as a direct them, the Plaintiff Defendants, gence was each eight days (8) at cost hospitalized period of for a forty-five eighty-nine dollars hundred and of three employ the required services ($389.45) and was cents a at medical services physician; costs that the unknown, Plaintiff filing Complaint and the time require in the future.” said services

will language objection concerns appellant’s first This ability and of time “. . future loss as to . therein contained objection the assertion contains . . .” The second work . by as- jury province invades the instruction that this appellee had issue, is, suming fact at material damages therein. Neither enumerated the items sustained Appellant contends objections can be sustained. of these one record, or in- evidence in not a there is scintilla appellee lose therefrom, future either will ference time from inability his work or suffer at to work his usual occupation. support The record does not contention. this any

Dr. Pugh expect im- Willis L. testified that he did not provement worse, appellee’s get condition could that it joint painful follows: . If the so . should become walking an ordinary

that Mr. Lehmann could not do it com- arthrodesis or a fusion to make ankle pletely stop pain stiff and From this done. . . could be appellee might evidence it could be future inferred that have time, loss of expenses, hospitalization, future it future thoroughly was proper for as it was to be instructed respect. in this province It neither invaded nor prejudicial Furthermore, itwas in form. said instruc- tion any fact, appellant states, does not assume it as said will be jury, by instruction, noticed that the limited said finding in its judgment by assessment a fair preponderance respect. every of the evidence in each and

After we will have appel- discussed the asserted errors of Evansville, lant most of which are of a nature similar to asserted appellant errors of Whirlpool, we will make com- on all ments quote the asserted error and from various statutes and cases relative to applied plead- laws as ings herein and the record; evidence contained in the but leaving before appellant’s Part VIII of this brief we refer to appellant’s Instruction requested tendered and given the trial court as follows: damages “You are not to injury assess or condi- plaintiff tion from which the may may have suffered or suffering, now be pre- unless has been established ponderance of injury the evidence that such or condition proximately caused question.” the accident Hence, it will be jury, observed that not once but at twice, least was admonished as to the limits of its considera- damages. tion in the award now to the appellant City

We come brief of IX, argument to both in is contained in Parts I the Whirlpool, in I its Evansville Part of brief inclusive. As did refusing in a to direct verdict asserts that the court erred Evansville; City is not of of verdict in favor contrary evidence; by it is to sufficient sustained argument I relies support under said Part To its law. specifications of Motion for (16) different sixteen Trial, follow: New by jury suffi-

“1. is not sustained The verdict cient evidence.” contrary jury law.” verdict of the to The

“2. overruling in motion and re- “9. court The erred City give quest of of defendant Evansville to plaintiff’s chief, jury, in a at conclusion of evidence peremptory instruction in favor to return verdict of City defendant, of Evansville.” give refusing jury, in to the “10. The court erred chief, peremp- plaintiff’s of in at the conclusion evidence tory in favor to return a verdict of the defend- instruction City ant, Evansville, of which said instruction was then writing defendant, City duly Evansville, in of tendered A.” defendant’s Instruction No. said overruling Evansville, “11. court in The erred the motion and re- give defendant, City jury quest of of to the plaintiff’s chief, of an at the conclusion evidence instruc- allegations withdrawing the issues formed certain tion plain- sub-paragraph (a) paragraph of rhetorical 10 of of complaint and said answer thereto from tiff’s defendant’s jury.” consideration of the refusing give “12. The court erred chief, plaintiff’s an in- evidence at struction Evansville, gations conclusion defendant, writing by tendered in withdrawing the issues formed alle- (a) sub-paragraph paragraph of rhetorical complaint plaintiff’s defendant’s and the said answer jury, which the consideration of the said thereto from instruction City of Evansville’s Instruction was defendant ruling B, and and court to which action objected excepted.” duly defendant overruling the motion and re- “13. The court erred give defendant, City quest plaintiff’s chief, at conclusion an withdrawing instruction the issues formed certain allegations sub-paragraph (b) para- of the rhetorical graph plaintiff’s complaint 10 of and said defendant’s jury.” answer thereto from the consideration of the refusing give jury “14. The court erred in to the to plaintiff’s at the chief, of conclusion evidence in an in- City writing by defendant, struction tendered in the of Evansville, withdrawing allega- by the issue formed the sub-paragraph of (b) paragraph tions of of rhetorical 10 plaintiff’s complaint and the said defendant’s answer jury, thereto from the in- consideration of the which said defendant, City struction was of Instruction Evansville’s C, ruling No. to which and action of the court the de- said duly objected excepted.” fendant overruling Evansville, “15. The court erred in the motion and re- quest defendant, City give jury of to of to the at struction plaintiff’s chief, the in- conclusion of an evidence withdrawing by certain alle- the issues formed gations sub-paragraph (c) paragraph of of rhetorical 10 plaintiff’s complaint of and said defendant’s answer there- jury.” to from the consideration of the refusing give jury “16. The at court erred in to to the plaintiff’s chief, the conclusion of evidence in an instruc- writing by tion defendant, City tendered in the of Evans- ville, withdrawing by allegations the issue formed the of sub-paragraph (c) paragraph plain- of rhetorical 10 of complaint tiff’s from the and the said defendant’s answer thereto jury, of consideration which said instruction defendant, City D, of Evansville’s Instruction No. ruling to which and action the court the of said defendant duly objected excepted.” overruling “17. The court erred the motion and re- quest defendant, City Evansville, give jury of of to to the plaintiff’s chief, at the conclusion of an in- evidence withdrawing struction gations formed certain alle- issues sub-paragraph (d) paragraph of of rhetorical 10 plaintiff’s complaint of and said defendant’s answer there- jury.” from the consideration of the refusing give jury “18. The court erred in plaintiff’s chief, at the conclusion of an in- writing by defendant, City struction tendered in Evansville, withdrawing of allega- formed issue sub-paragraph (d) paragraph of of tions of rhetorical plaintiff’s complaint and the said defendant’s answer jury, of which said from the consideration thereto defendant, City of Evansville’s Instruction instruction was ruling E, and action of the court said excepted.” duly objected and defendant overruling the motion and re- The court erred in “19. give Evansville, quest defendant, to the chief, plaintiff’s in- evidence in an at the conclusion of withdrawing certain alle- the issues formed struction gations sub-paragraph (e) and said paragraph rhetorical plaintiff’s complaint answer defendant’s jury.” consideration thereto from the refusing give The court erred “20. plaintiff’s chief, an in- evidence in conclusion at writing by defendant, City tendered in struction allega- withdrawing formed the issue paragraph sub-paragraph (e) of rhetorical 10 of tions plaintiff’s complaint and the defendant’s answer jury, in- from consideration which said thereto defendant, City of Evansville’s Instruction struction ruling F, and action of the court the said to which No. defendant objected duly excepted.” overruling re- the motion and “21. The court erred give City Evansville, defendant, to the quest to of the evidence, peremptory of all the a jury the conclusion at in favor of return a verdict said defendant.” instruction give refusing at erred in The court “22. peremptory evidence, a instruc- of all conclusion the tion writing City defendant, by the of Evans- tendered defendant, ville, a favor said which return verdict of defendant’s Instruction was said No. G.” instruction exactly specifications or simi- are either like Many of these Whirlpool’s Motion Trial. specifications for New lar to presented (10) specifications However, are ten more there Whirlpool presented only (6) Evansville, six inasmuch by fifty pages Approximately of Evansville’s specifications. support contentions set forth are devoted brief above. opinion Part in our under been said reiterate what has

We argument. Whirlpool’s I of Whirlpool the sewer owned no denial but what

There is difficulty evidently provided the seed question, which negligence evidently which the found to exist part appellants. 6, of both Plaintiff’s Exhibit No. above forth, set was introduced into the in their evidence but appeal appellant appears briefs neither to have considered worthy setting presenting it it forth in the or even briefs a resume’ thereof. Whirlpool

The circumstances under which became question liability owner of the sewer and its under the provisions plaintiff’s Exhibit No. as well as the imposed by duties said instrument on the Board County by Commissioners and later annexation on liability do not it relieve from appellee herein, guise under of the authorities cited municipal by appellant, it, corporation, as a “incurs liability negligence repair maintain, for failure or or inspect private line.” In effort to free sewer its itself from liability, upon McQuillin, Municipal Corporations, it relies Revised, 53.118, page 3rd Edition Sec. It Vol. im- 457. mediately pages thereafter refers to the same treatise at following and 458 thereof which cites relies quotation: “. . . the well-settled municipality [it rule damages by negligence

is liable for caused opera- in the tion and maintenance of sewers and drains under its con- However, liability public trol. is restricted to the sewers controls;] corporation pri- does not extend to sewers and vate drains ivhich it did not construct or accept. legally by Unless municipality authorized to be constructed, duly or after it, construction ratified mu- damage nicipal liability for caused sewers and drains Accordingly municipal does exist. there is no liability drains or culverts per- sewers constructed third for their sons own use and not controlled the munici- (Brackets supplied pality. . .” emphasis . writer and supplied by Evansville.) plaintiff’s among things, pro- Said Exhibit No. other party (Whirlpool) agrees “The vides second that all surface operations in connection with the construction and mainte- subject to the be at all times nance of said sewer shall party. (City supervision of Evans- control the first fully con- ville.)” without cannot read this instrument One thereby cluding appellant, bound that this which, opinion, in our re- in accordance terms and with its private category of sewer. from the naked moves oozing Furthermore, seepage break, of the from said top north liquid on the side surface sewer lane, Avenue, flowing north onto the Diamond thence Avenue, it froze of Diamond where west traffic lane implies thawed, creating condition, also thus the hazardous proximate collision and of the the direct and cause Diamond injuries to maintain appellee was the failure appellant requires so in a condition as the law Avenue safe already question raised now answered the to do. We have Accord- to the location of the collision. ing pavement on Diamond the evidence it occurred on interroga- Avenue, answer an its and the so found showing any mu- tory no propounded to There is it. charged nicipality City of Evansville other than the maintaining Diamond Avenue responsibility of with entirety. plaintiff’s Ex- provisions of doubt, no There under the required to maintain at all times was hibit that Evansville However, Whirlpool. private control sewer responsi- had if held that Evansville even it were bility for the maintenance kind or character provisions plaintiff’s sewer, Exhibit under the proximate awas in the sewer itself is that the break fact cause, perilous condition cause, if immediate not the Avenue, which, the statutes and all under of Diamond liability in Evansville subject, creates law case and to Diamond Avenue to maintain properly failure perilous that existed. condition repair it, notice of the after correctly necessarily appraise the evi- does not .Evansville dispute says is no but there when it dence collision, leading up same, and each event to the occurred within Highway the boundaries of the State right-of-way. jury, by The interrogatories, answer to found that col- Avenue, part lision ap- occurred on Diamond and this of pellant’s brief, Whirlpool as well as the brief of on the same argumentative subject, presents only their charac- legal terization of the of sense the evidence. photographs

There were a number of into introduced evidence, upon which marks were made various and witnesses, they helpful diverse are but not to this Court in a they helpful manner determining were in place of the various occurrences. The statements, mere reiteration, transpired with much that events at certain places, question do not make them true. This properly left findings and there evidence to sustain its respects. in these The

Evansville cites Board Commissioners of Washington County Township Owen v. (1890), 121 379, 257, says Ind. 23 N. E. succinctly which it states pages at 380 and 381 as follows: city bridges A town county or can control not or highways, authorities, nor, county for their control is committed to the hand, county on the other can authorities bridges city control or power streets. Where there no responsibility to control there is to re- failwre

pair, duty since produce and its breach must concur to right (Emphasis supplied a Evansville.) . . by City action. .” authority support This does Evansville because Evans- ville, 6, plaintiff’s power control; under Exhibit had the fortiori, responsibility. control leads to

This Court observes no irreconcilable conflict between the County Board decision The Commissioners Owen case, supra, judgment case, and the as well as the Acts 2; 1945, 278, 1; Ch. Sec. Ch. Sec. found 36-2902, Repl., Burns’ 1949 which said statute reads § follows: highway “The state commission shall select the route

highways system highways control in the under through incorporated cities and towns in the state . . . and roadway streets, improve may construct thereof, may part such be determined width incorporated all cities and towns in commission highways system are .... state over which Upon such routed completion any duty such the of street it shall be the roadtvay to maintain the street said commission said of of so constructed by commission, including the said curbs and gutters, street inlets, of catch basins within the limits such highway integral parts or that such street form highway, duty city the or to maintain the sidewalks and it shall be of such or town grass plats thereof and drainage by connecting facilities therefor. Whenever this charged highway the state commission is with the section reg- any street, may maintenance such said commission parking may and control on such street and remove ulate by (Emphasis supplied . . all hazards traffic therein . .” Evansville.) City of permit the called to the evidence which would Attention is danger- authority by telephone to correct city secure Avenue. The perilous of Diamond condition ous and authority found, that if from State could have properly city repair necessary for or main- were Commission Avenue, be that it would the evidence discloses Diamond tain by telephone asking per- forthcoming immediately such appellant’s support of either no evidence There is mission. Highway con- Commission the State herein contention right-of-way limits Avenue within Diamond structed Highway Commission, Highway or State the State obligation duty repair to maintain or any or had Commission Avenue. Diamond by Indiana an Act General conclude We 36-2902, Replacement, Assembly, in Burns’ 1949 found § High- permits paraphrased, the State and now cited above highways under its the route to select way Commission through incorporated control cities such as may improve streets, it construct and or the roads and any parts thereof, may to such width as be determined highways routed, upon the Commission over are completion duty of such street it shall be roadway Commission maintain said streets con- so structed, including gutters, etc., curbs within the highway integral limits of such part street that form an highway, duty of such street or and it shall be the such grass city plats to maintain the sidewalks and thereof and connecting drainage facilities therefor. Wherever this charged section the Commission with the maintenance of regulate any street, such such Commission shall and control parking may thereon and all remove to traffic hazards there- part provides nothing in. Another of this section in this way city any section contained shall relieve such liability imposed thereto, reference now law. Covington 229, (1927), v. App.

Gardner 86 Ind. appellant, E.N. cited was decided under statute, dealing whereas we are here with a statute enacted in pursu 1937 and amended in under and in ance which Argos this Court decided the case of Town of Harley (1943), App. v. et 114 290, 552, al. Ind. 49 N. E. 2d before amendment. emphasis again

For by we that stress found an- interrogatory Whirlpool swer that to had notice of the break “Tuesday, in the sewer on 2-7-1961.” Also that the sewer question part in leak in was not Highway sys- the State finally, and, tem collision in appeal referred to this highway part did not occur within which was a of the Highway system. Again, Indiana State we state for em- phasis that there which was evidence sustained these an- interrogatories, directly by legitimate swers both be natural inferences to drawn. Opinion 1938, Attorney General, upon

The in relied by significant appellant, application ap- this has this appears opinion peal, from for the reason that Highway charged duty State Commission with the “is roadway high- of the over which maintain street such language ways pass.” Obviously this has reference to the paved portion city. of a street in a Under Point 5 of its brief appellant questions this the refusal the trial court withdrawing from consideration of the raised issues 10, sub-paragraphs paragraph each of rhetorical having negligence alleged particular do with the acts already apparent therein. It should be from what we have point taken; appellant’s stated this is not well con- respect legal import tention with of the evidence being weight. incorrect, this contention falls its own This respect (a) where, reiteration, true with to Point 5 is this legal appellant construing import evidence, position. premises continues to assume an erroneous False arguments beget false The breed false conclusions. same appellant’s (b), (e), (c), (d) true with this Points 5 appellant and while the cited these authorities this under points may applicable law, case, state the in each facts they application appeal. have no this brief, Whirlpool, it as- Evansville’s as does

In Part II of 2, giving appellee’s Instruction No. error serts Specification forth, based its No. which is set above Trial. Motion New respect said in First, we have we reiterate what Whirl- and, second, objections we conclude pool’s to this instruction instruction, objection set forth appellant’s to said that this argued thereof, because of under Part II its brief proceeds, appellant also premises from which this false taken. well argument attacks the III of

In Part giving tendered and validity of Instruction and the is set out above. appellee, said instruction requested by Motion for New Trial. Specification No. Evansville’s See ap- assumption by trial court no find erroneous We proving giving instruction, by and this nor do we find that giving, its presumed trial court either assumed or that negligence the evidence disclosed part acts of on of this appellant. given by Under all the court, instructions we proper deem it to conclude that fairly in- phases structed all applied evidence, the law as conclude, and we cannot urges, this as other than that this instruction impersonal states the law on an basis. appears This instruction necessary have been for the properly to have been informed liability, about how such if any, corporate including entity, created a appel- this perceive lant. do instruction, We appel- this as this urges, any lant commits the trial presumption court or assumption negligence act appel- either Whirlpool committed, lant or particularly is this appellant’s true of this view tendered Instruction No. given by the court as follows: you “I defendant, City instruct duty keep public is under reasonably streets in a condition safe for travel and when such streets become un- city duty protect safe then the using is under a further those streets, provided, however, agent, that an ser- employee city, duty vant whose it was to main- streets, tain the knew of the unsafe condition or that long enough city condition existed so that should have condition, provided known of the further, city necessary protection.”, opportunity had reasonable time and provide Whirlpool’s given court, Instruction No. is as follows: “This by you case should be considered and decided persons equal standing an action between in the com- equal worth, munity, holding the same or similar corporation A stations life. is entitled to the same your private at hands fair trial as a individual. The law respecter persons; persons, including all corpora- equal

tions, law, stand before the and are to be dealt with equals justice.” in a court may add there other We that were various instructions concerning liability appellant Whirlpool, the and of this limiting duty appellee, respect with to the instructions right recovery, his which forces Court conclude this charge eminently jury that the fair in all re- was spects; by conclude that the attack this we further appellant, Whirlpool, instruction, as well on this as well as others, as all the with is not instructions which consistent by given appellants the court. both tendered and were appellant positions Each herein has taken inconsistent with by respect case, other evidenced instruc- law given. they tions which tendered and which were appellant’s relying upon Specifica- brief, Part IV of this argues Trial, 25 of Motion tion No. for its New asserts giving that in there was error of Instruction appellee. 9 tendered We think this instruction correctly despite this the contention of states law wholly appellant and, further, was that said instruction The action and evidence. herein was within against issues appellants joint This both instruc- tort-feasors. subject objections not made at the trial court tion is appeal. and asserted this upon Speci- appellant relies Part of its brief this

Under V says New No. 26 of Motion Trial and fication jury giving Instruction No. court erred requested appellee. This instruction tendered and Again, what reiterate we above. we is set forth Whirlpool’s objection. under to this instruction reference objection appellant’s to this instruction is first This regard mandatory.” “completely not it. Casual do so We is suggests reading was not instructed forthwith that the appellant appellee, asserts, for the as this must find that it pre- hand, from fair if it should find the other but on ponderance ele- total those the evidence sum of all negligence contributory therein, with enumerated ments justi- appellee, jury, part it, the would be then on the awarding damages, appellant claim etc. The this fied mandatory this instruction is does not make it so particularly This instruction is con- fact. true when this many instructions, sidered all the other of which were with appellants and decided tendered law cases presented under the and the evidence introduced. issues Specifi- brief, relying upon appellant’s In Part VI of this Trial, cation No. of its Motion for New giving of Instruction No. contends requested by appellee, tendered erroneous. This opinion that instruction set forth It above. is this Court’s only proper necessary, and read this instruction but light in instructions, all of were some which given court, appellants it tendered these giving thoroughly proper predicated on and no error can be the same.

Relying Specifications its its Motion for No. New Trial, appellant in Part trial court VII contends that the erred giving re- Instruction No. tendered and quested by appellee, regard this and as above set forth. We proper plead- necessary, instruction as and even in view of the ings, appellant erroneously the issues and the evidence. This asserts that there is not a scintilla evidence the record establishes, which fromor which it can be inferred “the appellee will, future, in the either lose time from his work inability occupation an suffer to work at his usual as a driver.” truck Of course he had returned at to work the time easy perceive it of trial. But is not appel- us how this lant, urge Whirlpool, strenuously as as well can there is proposition. not a scintilla evidence have As we indicated, Whirlpool’s objection under to this instruction and argument, Pugh its record reveals that Dr. Willis L. any expect improvement testified that he would not appel- get worse; joint lee’s condition and that it could that “If the painful should become so Mr. Lehmann could not do ordi- nary walking an arthrodesis or fusion of the ankle to make completely pain stop stiff and could be done.” This instruction, opinion, province our did not invade of the jury, having finding predicated upon jury’s been “from preponderance a fair evidence, of the and under the instruc- Court, plaintiff tions of recover, is entitled to you damages then should determine the he has amount sustained, any, pertaining if from the dam- such ages.” find no We rule of law this instruction contra- which venes, damages nor do we find elements called to the jury concerning attention of the there no evidence. throughout appellants herein, This Court concedes that both trial, appellee contested the claims assertions of as to damages, place liability collision, appellants, notice, either or both as to and other elements. So jury, far as we can determine the under the instructions of court, presented evidence, against the issues and the found appellants. may The mere fact that the have found oth- justiciable questions erwise on one or more of the does not permit appellants these now to assert that their characteriza- tion, judgment legal import and conviction as to the prevail. evidence should appellant, relying upon Speci-

In Part VIII its brief this fications No. 31 Trial, and No. 32 of its Motion for New con- giving tend that the court erred Instructions No. requested co-appellant, tendered and Whirlpool. objections grouped

Since these instructions and thereto are part brief, under one of the we shall so consider them. appellant says “by reading

This that these instructions jury the court concept below demonstrated that of the applicable relating rights, law and duties in the main- tenance, repair inspection private and sewers and in the maintenance, repair highways and control of state within its limits, If, corporate said, was fallacious.” as we have this Whirlpool, proceeded wrong appellant, as well as from a premise, they there is little wonder that objec- make such case, Under the evidence this tions. as revealed the rec- plaintiff’s (appellee’s) Exhibit ord, particularly under and 6, express opinion that the trial court eminent- we No. stating question us. now before ly on the correct law part of no on the that there is contention will be noticed It appellant pri- liability, one appellant if there is is either that secondarily marily For this Court and other liable. liable primary opinion respect any include in this remarks with dicta, secondary liability, any, if obiter doubtless would be already length that are opinion sufficient we this is of making subject. remarks this restrained from undue brief, relying upon Specifications No. to Part IX of its As 42, Motion 41, No. of its 39, 43 and 40, No. No. No. Trial, error in the refusal asserts for New 11, give Instructions numbered its tendered the trial court 13, 15, 19. instructions were follow: These defendant, you City of that “No. I 11. instruct inspection, Evansville, responsible mainte- is not for the public privately repair sewers under owned nance streets.” defendant, City of you I “No. 12. instruct inspection,

Evansville, nance and and responsible mainte- for the is not repair streets privately under owned sewers highway system.” highways part which are of the state defendant, you City I instruct “No. 13. responsible upon a for ice and water is not part sys- highway highway of the state street tem.” city you that a is not liable for I instruct “No. 14. not which it has did construct or sewer defective sewerage By system. adopting it its own adopted into city control and assumed the mainte- has that the meant

is nance of the sewer.” defendant, you I instruct “No. 15. place upon legal duty to Evansville, or a street under system, ob- highway a barricade or highway of state kind.” struction Indiana, force full A statute State “No. 18. pro- controversy, accident time of the at the effect part, as follows: vides ‘36-2903. AND OPENINGS IN OBSTRUCTIONS STREETS —PERMIT—VIOLATIO N—PENALTY FOR any opening highway shall VIOLATION. —No be made in highway right system, way any city in in the state or of of roadway highway, any such or any in the of of street highway or nance charged be street without routed, town over which such mainte- highway of which street the state commission is by law, any with nor shall or obstruction structure any highway placed any roadway or such of such highway consent of the state commission. (Acts 1937, p. . . . 1199)’ ch. Sec. you If find from the this case that the ob- highway struction in the in the form of ice was in the right way highway highway of system, a in the state you defendant, City then I instruct that the by prohibited taking such statute from action with reference to such obstruction without consent of the highway state you commission of the state if Indiana City find that the of Evansville did not have such consent your finding defendant, therefore should City be for the Evansville.” you you “No. 19. I if preponder- instruct find a leak, ance of the evidence that the sewer referred to in the pleadings part if evidence, highway was in a which was highway system Indiana; state of the State of you preponderance find further of the evidence that Whirlpool Corpora- said sewer was owned the defendant Whirlpool Corporation tion and solely that said re- sponsible further sewer; for the you maintenance and if preponderance find of the evidence that pleadings referred collision in the evidence highway part occurred within a which was of the state highway system Indiana, your finding the State of then defendant, should be of Evansville.” appellant says give This the refusal these instruc- presents substantially and, question

tions the same therefore, they grouped supported by are one argument, conformity (e) with Rule 2-17 Supreme Court Indiana.

Our attention has been called to no evidence which even suggests any one, all, of these instructions should given jury. unwilling have been The trial court was adopt contentions of either that there was repair responsibility inspection, for the maintenance 6; or appellee’s Exhibit No. sewer established under responsible inspection, mainte- was not for the that Evansville sewer; was repair nance of or that Evansville and said upon street; or that responsible the ice and water its resulting from not liable for the conditions Evansville was legal duty sewer; is under no or that Evansville the defective any kind place upon or barricade obstruction to street particular; public traffic, appellee all as protect and in to the argument respect to by the evidence. And in its with shown persists give 18 Evansville Instruction No. refusal 36-2903, Replacement, applicable, again is Burns’ 1949 that § sup- called to our attention which when there is evidence ports it. give appellant’s In- respect this to the refusal

And in opinion instruction refused is it our struction No. as we the issues and the not in consonance with was primary instruction Whether or not an understand them. not for us liability have been order secondary would question has never been say, for the reason that now urged appeal. presented is not this obligations rights, Succeeding duties Vanderburgh County, County un- Board Commissioners May 14, 1942, annexation agreement when der the thereby, place, bound Whirl- took ownership, party to pool, and the other as successor Republic Corporation, became obli- agreement, Aviation agreement therein. Note that set forth gated under . agreement all . . grantor reserves “at times in said Whirlpool, as successor supervision Note and control.” or- “comply with such ownership, at all times is bound Party by the First should be made and directions ders concerning construction and method (Evansville) times, all and that it will at of said sewer maintenance therewith, comply connection with all orders of the First Party, and the statute State Indiana.” again agreed

Note predecessor between the parties Party in interest “that failure of said Second (Whirlpool), upon writing, comply reasonable notice of any Party with (Evansville) order the First or other proper department concerning authority, the maintenance sewer, Party (Evansville) the First shall have the right by appropriate legal proceedings any either or in other manner, rights granted forfeited, lawful hereby to declare the compel Party and to the Second to remove the said sewer from the said street.” again grant “subject

Note made to the full complete highway, control of the said above described (now proper Avenue) Diamond authorities in said county, (Evansville) right shall at who time have the regulate highway change grade to use said and to public may require.” thereof as convenience finally Party note (Evansville) And that “First does grant hereby also unto the Party, Second its successors and right upon assigns, the premises enter said area and above described, at all purpose inspect- reasonable for times ing, removing repairing, maintaining sewer, subject, said supervision hoto ever control Party. said First (Evansville).” (Emphasis supplied.)

By very agreement, appellee’s Exhibit No. entered by predecessors into in interest and succeeded interest appellants, required Whirlpool, these Evansville who had the right upon premises to enter purpose, such but for tender supervision maintain, control and repair, etc. objections appellant’s briefs,

We find no stated in either of relies, each which of them that can be sustained. hand, whole, On other considered as a the instructions in- find no given, fully and we fairly instructed expressed con- objection made and struction charge jury or nullify the whole tended that should justify reversal. would conclusion, no error advanced under In have found we appellant’s can sustain. either contentions which this Court Judgment affirmed. Smith, JJ., J., concur

Bierly, C. concurs. Hunter and result. Rehearing Petition for

On for appellant petition herein has filed J. Each Mote, rehearing. Whirlpool Corporation,

Appellant, a brief has submitted arguments petition support presented therein its but has designed support its contentions. rehearing petition

Appellant, also for Evansville’s designed arguments support said con- therein contains argumenta- an and said has also submitted tentions tive brief. petition

By petition, appellee of the said dismissal seeks compliance lack of with Rule 2-22 of because of asserted Indiana, guidance. Supreme adopted our Court governing Supreme Court, matter, Rule 2-22 follows: reads as rehearing Application for a REHEARINGS. 2-22. “Rule separate by petition, from be made of briefs, twenty concisely cause shall counsel, signed by and filed with the clerk within decision, stating (20) days rendition of the from thought why be the decision is reasons may, desired, supported application if be erroneous. Such briefs, will be received after briefs but such filing petition. opposing the Parties for allowed time days may (10) rehearing after file briefs within ten Adopted April 17, petition. 1940. Effective Effective

(filing of the 17, September 2, Amended June 1943. 1940. 6, September 1943.”

633 rehearing petition has been held our that a for It courts must conform aforesaid Rule 2-22 and that it must not argumentative Blakely, be brief. et an See Guthrie v. (1956), 119, 62, App. al 127 Ind. 130 N. E. 2d 131 N. 357; Maryland Casualty Co., E. 2d etc. v. Weiss (1958), App. 481, 644, 129 Ind. N. 2d E. E. 157 N. 2d 840. Underwriters,

In the case of Automobile Inc. v. Smith (1961), Supreme 241 Ind. N. 2d E. Court stated: (referring why “. . . if such reasons reasons thought erroneous) decision concisely is to be cannot be stated, argument and it is considered that extensive alleged petition desired,

support of errors in the such separate argument petition.” must be submitted from the comply Supreme Failure to with Rule 2-22 of the Court may appellants’ petitions Indiana cause dismissal of for re- hearing. purpose

It not our provisions to violate the rule, yet general we that, are faced although with the rule rules adopted are for the benefit of the court as well as for the use parties upon and benefit of they safely may which rely, arbitrary power we do not wish to assume an of dismissal finally dispose appeal. Hence, would hereby we deny petitions rehearing, for appellee’s as well as petition petitions rehearing. for dismissal Smith, J., Bierly Hunter, P. JJ., concur. Reported in 210 N. 2d Rehearing E. 672. denied

NOTE.— E. 2d N. 796.

Case Details

Case Name: CITY OF EVANSVILLE v. Lehman

Court Name: Indiana Court of Appeals

Date Published: Oct 14, 1965

Citation: 210 N.E.2d 672

Docket Number: 20,252

Court Abbreviation: Ind. Ct. App.