51 Ind. App. 646 | Ind. Ct. App. | 1912
— Appellee received a judgment against both appellants for personal injuries. Each appellant addressed a separate demurrer to the complaint, and both of such
From the averments of the complaint it appears that prior to the injury to plaintiff, the Hollerbach & May Contract Company had entered into a contract with its co-defendant, the city of Evansville, by which it agreed to construct in said city a sewer, known as the “Kentucky Avenue Sewer,” and that it had entered on the prosecution of such work. It further appears that pláintiff was injured on the night of February 22, 1909, by falling over a board which had.been placed on the concrete sidewalk on Monroe avenue by defendant company in the prosecution of the work of constructing the sewer. On the subject of negligence the complaint contains the following averments: “That said defendants permitted and negligently permitted and allowed said plank or board to remain upon said concrete sidewalk on said Monroe avenue for a period of four or five days prior to and upon the said 22nd day of February, 1909; that said plank or board so left upon said sidewalk had no light placed upon the same and no guard placed upon, around or near said plank or board by which the attention of this plaintiff or others who might be lawfully walking upon said sidewalk would be attracted thereto; * * * that said defendants had notice of said condition in time to have prevented the injury to this plaintiff and that the said City of Evansville retained at all times the right to supervise and control the construction of said sewer.” The complaint also alleges, in effect, that the condition above described was on a public sidewalk in a thickly-populated and much-traveled part of the city, and that ' plaintiff, while walking in a eareful and prudent manner along the street on a dark and rainy night, tripped on the plank and fell, and was thereby injured; that her injuries were caused by the negligence of defendants in permitting the plank to be placed and to remain on the sidewalk, as above set out. A fuller statement of the averments of the
It is apparent, from what has been said, that the objection that the complaint does not proceed on any definite theory on which it can be held sufficient is without foundation. The court did not err in overruling the demurrers to the complaint.
The objection urged against the third instruction cannot be sustained. An instruction similar in all respects was approved by a recent decision of this court. Indianapolis Traction, etc., Co. v. Miller (1909), 43 Ind. App. 717, 88 N. E. 526.
We find no reversible error in the record, and the judgment is affirmed.
Note. — Reported in 100 N. E. 110. See, also, under (1, 2) 28 Oye. 1465; (4) 2 Cyc. 1014; (6) 2S Oyc. 1515. As to the liability of a municipal corporation for defects or obstruction in streets, see 20 L. R. A. (N. S.) 513; 103 Am. St. 257. As to the liability of a municipality for injuries from unevenness in sidewalk or cross walk, see 20 L. R. A. (N. S.) 180. For a discussion of the municipal liability as to stationary obstructions in streets, see 1 Ann. Cas. 968; 10 Ann. Cas. 670.