22 Ind. App. 66 | Ind. Ct. App. | 1899
— This is the second appeal to this court. The former is reported as the City of Huntingburgh v. First, 15 Ind. App. 552. The action was begun in the Dubois Circuit Court, and upon change of venue tried in the Warrick Circuit Court. The complaint is in three paragraphs. They do not materially differ. In the first paragraph it is alleged that appellee, on the 25th day of October, 1893, was walking upon a certain board sidewalk on Washington street, in the city of Huntingburgh, on her way to church, in company with one Mary Lott; that her companion stepped upon one of the boards used in the construction of the walk, which had been permitted, on account of appellant’s negligence, to become loose, when the board tipped, turned up at the opposite end thereof, and immediately in front and within a foot of appellee, just as she was in the act of stepping forward, when she, without any fault or negligence on her part, caught her foot under the board, stum
The cause was put at issue by general denial. 1 A trial by jury resulted in a verdict for appellee in the sum of $1,000. Appellant’s motion for a new trial was overruled, and judgment rendered in favor of appellee on the verdict.
The only error assigned upon this appeal is the action of the court in overruling appellant’s motion for a new trial. The first and second causes for a new trial question the sufficiency of the evidence to sustain the verdict of the jury; the third, fourth, and sixth causes relate to the giving and refusal to give to the jury certain instructions; the fifth, that the court erred 'in sending the jury out of the court room while the opinion of the Appellate Court, reversing judgment upon the former appeal, was being read tp the court after the title of the cause had been read to the court in the presence of the jury.
In support- of the first and second causes for a new trial appellant contends: (1) That there was “no evidence which tended to show such deféct in such walk at the place where appellee fell as rendered the city liable to the imputation of actionable negligence.” The evidence shows without contradiction that the walk on which appellee fell and received her injury was made of old boards or planks which had long been in use before being placed in the walk. They were from four to eight inches wide, five feet long, one inch thick, nailed upon three stringers laid upon the ground. The ends, of the plank projected beyond the outside stringers. The stringers could not be seen when the planks were in place. Some of the planks were broken, some were wanting, and some were partly out of place on October 20, 1893, the date of the accident. The broken and misplaced planks could, of course, be readily seen, but, as testified to by a member of the council, one could not see that a plank was not nailed. The walk had been in this condition, as stated by various witnesses, from three months to two years prior to the date of
Appellant’s counsel next contend that there was no evidence tending to show that the appellee was exercising due care at the time she received the injury. Appellee testified that: “The walk was right good where I was walking. Some
Appellant’s counsel next insist that the evidence, and especially that of appellee, fails to show that she had no knowledge of the dangerous condition of the sidewalk in question. It is apparent that the general condition of the walk was open to any person of ordinary observation. Rut appellant and Mrs. Lott testified, as we have seen, that the particular
Appellant next complains of instruction number one given by the court of its own motion. It is as follows: “It is the general duty of the city to keep its sidewalks in a reasonably safe condition for use. ‘ If you find that the plaintiff knew that the walk in front of the Meeker property (the walk in question), on Washington street, had planks out in places, had rotten stringers, and was shackly, or was in any other way defective, the plaintiff might yet use the walk, provided she did so with care and caution, rendered reasonably necessary by her knowledge of such defects. If, while so using such walk, one side of a board was suddenly raised by her companion stepping on the other end, so that she fell and was injured, and was then exercising due care in view of her knowdedge of all defects, and that the defendant knew of the defective condition of the walk, your finding should be for the plaintiff.” Appellant claims that this instruction leaves plaintiff’s conduct to conjecture, and that a finding by the jury under this instruction that the appellee was passing over the walk with care and caution “is not equivalent to finding that she was acting and proceeding
We think it cannot be said that this instruction leaves plaintiff’s conduct to conjecture. The expression, “plaintiff might yet use the walk, provided she did so with care and caution, rendered reasonably necessary by her knowledge of such defects,” is equivalent to informing the jury that appellee was required, in passing over the walk, known by her to be defective, to exercise a care proportioned to the known danger to avoid injury. Nor do we consider the instruction erroneous because it did not state what facts might consti-' tute contributory negligence. Had appellant desired more particular instructions upon that point, it should have requested them.
In instruction two given by the court of its own motion, and excepted to by appellant, the court advised the jury that in determining the weight they would give to the testimony of the plaintiff they should consider the evidence relative to her testimony on the former trial, and if they found contradictions in her testimony given in the two trials, it was their province to determine on which occasion she was telling the truth. It is claimed that this instruction, is erroneous, “because it assumes that there had been no impeachment of appellee as a witness by reason .of any contradictory statements she may have made in the several trials of this cause, and invades the province of the jury in assuming that appellee’s testimony is entitled to full weight and credit, regardless of any contradicting statements in her- sworn testimony. We fail to see the assumption mentioned. It wTas. not necessary nor proper for the court to say to the jury that appellee had been impeached. That was a fact for the jury to determine. It did instruct the jury that they were to de
Instruction two given at the request of appellee and excepted to by appellant, informed the jury that the appellant had answered the complaint by a general denial; that, “under the issues thus formed, in order to entitle the plaintiff to recover, the burden is on her to prove by a preponderance of the evidence the material averments in at least one paragraph of her complaint, — that is to say, the plaintiff must prove that the city was guilty of negligence substantially as alleged, that the plaintiff fell and received some injury, and that her own negligence did not cause or contribute to the cause of the injury.” The jury were told by this instruction that to warrant a recovery it wa's necessary for appellee to prove by a fair preponderance of the evidence the negligence of appellant, her injury, and her freedom from negligence contributing to the injury. It briefly stated the law.
Instruction three, given at the request of appellee, and excepted to, instructs the jury, in effect, that where a person sustains an injury upon a public walk by reason of known defects, using due care proportionate to the known danger, his going upon the walk is not contributory negligence when the walk is not necessarily impassable, or so obviously dangerous that ordinarily cautious persons would forego travel thereon. Appellant’s learned counsel contend that this instruction ignores the doctrine laid down in the Town of Gosport v. Evans, 112 Ind. 133, in which Justice Mitchell, speaking for the court, on page 139 says: “If the defect in the pavement, which the plaintiff voluntarily encountered, presented an obstruction, or was of such a character that the town of Gosport was bound to take notice of it, so that it was guilty of negligence in not repairing it, the conclusion follows necessarily that the plaintiff, having full and equal knowledge of its character, was guilty of contributory negligence in venturing upon it, no matter how carefully she may have prepared for the encounter, nor with how much care
In the case before us, while open defects were known to appellee, the one from which she received hen* injury was not apparent, and she was in the daytime proceeding slowly and carefully, and looking for defects.
The court, in Town of Gosport v. Evans, 112 Ind. 133, recognizes the doctrine' that although a sidewalk or highway may be in an apparently dangerous condition, yet a person with a knowledge of the danger is not on that- account to abandon travel upon such highway, if by the exercise of due care proportioned to the known danger he may reasonably expect to avoid the defect; citing, City of Huntington v. Breen, 77 Ind. 29; Wilson v. Trafalgar, etc., Co., 83 Ind. B26;Wilson v. Trafalgar, etc., Co., 93 Ind. 287; Nave v. Flack, 90 Ind. 205; City of South Bend v. Hardy, 98 Ind. 577; Town of Albion v. Hetrick, 90 Ind. 545; Turner v. Buchanan, 82 Ind. 147, 42 Am. R. 485.
The court refused to give instructions numbered two and six requested by appellant, to which refusal exceptions were taken. In brief, they are to the effect that if the appellee knew of the defective condition of the sidewalk as did the
Appellant requested the court to instruct the jury that “■a person cannot voluntarily encounter a well known danger, and then maintain an action for damages for injury thus received, for the reason that the law requires them to be without fault themselves. Therefore, if the city was negligent in allowing the walk to get out of repair so that it was unsafe or dangerous to travel on it, and the plaintiff, Mrs. Eirst, was also guilty of carelessness in going on said rvalk because she knewr of its unsafe condition, then she cannot recover, because her negligence contributed to bring about the injury complained of.” The court modified the instruction by the insertion before the word “voluntarily” the words “carelessly and,” and the instruction thus modified, to which modification appellant excepted, was given. As modified, we think the instruction correctly stated the law. The instruction as requested is also faulty, as also are said instructions two and six requested by appellant, in assuming that appellee knew the defect from which she received her injury. She testified, as heretofore set out, that the walk appeared to be good, when in fact the plank that caused her fall was loose. She was on her guard as to obvious dangers. Erom the evidence, she did not have the knowledge which was brought to the appellant through its council and city marshal. It appears from the evidence that appellee walked slowly and carefully and looked. Ordinary prudence required nothing more.
The fifth reason for a new trial is not discussed, and, under the rule is waived. We find no error for which the judgment should be reversed. Judgment affirmed.