48 Ind. App. 117 | Ind. Ct. App. | 1911
Action for damages by Paul E. Bartrom, by his next friend, Jacob Bartrom, on account of injury alleged to have been sustained by said Paul E. Bartrom, by reason of his stumbling and falling over an alleged protruding stone in one of the sidewalks of said city.
The complaint was in one paragraph, the sufficiency of
Upon the conclusion of appellee’s evidence, appellant moved that a verdict be directed in its favor, but the motion was overruled. Appellant also filed a motion for judgment on the answers to interrogatories and for a new trial, each of which motions was by the court overruled. Exceptions were properly saved to each of said rulings of the court, and the questions presented by said rulings are now before this court by proper assignments of error.
The answers to interrogatories present the case in the light most favorable to appellant’s contention. We quote enough of the interrogatories and the answers thereto, and the substance of others, necessary to a correct understanding of the question presented by the ruling on said motion for judgment thereon. They are as follows: Clark street is one of the public streets of the city of Huntington, and runs south from William, street, through a thinly-settled portion of said city. On its east side there was a sidewalk four feet wide, constructed of crushed stone, some of the small stones of which protruded above its general surface at the point where plaintiff was injured. Plaintiff was born October 18, 1899, and his injury complained of occurred October 12, 1906. For some time prior to receiving such injury, plaintiff had been attending school on said William street, during which time he passed over said sidewalk four times each day, and knew “there were some stones sticking up slightly above the general surface of said sidewalk.” On said October 12, 1906, plaintiff had good eyesight, was enjoying fairly good health, was all right mentally, and when returning home from school about 4 o’clock p.m. of said day was running over said walk going south, and while so running he fell.
“Q. If plaintiff fell upon or over a stone in said sidewalk, how high did said stone extend above the general surface of said sidewalk?
A. Three-fourths of an inch.
Q. What was the diameter, in inches, of said stone, where it protruded through said sidewalk?
A. Two and one-half inches.
Q. Was said stone rounded, and did it slope down from its highest part to the gravel in the general level of the walk ?
A. Yes.
Q. Could plaintiff have seen the stone over which he is alleged to have fallen if he had used ordinary care?
A. Yes.
Q. What was the distance between the stone, over which plaintiff is alleged to have fallen, and the outer edge of said sidewalk?
A. Eighteen inches.
Q. What was the distance between said stone and the inner line of said walk next to the Balze-r lot?
A. Thirty-two inches.
Q. Was there any obstruction in said walk on October 12, 1906, when plaintiff fell, between said stone and either edge of said walk, that would prevent plaintiff from passing around or to the side of this stone ?
A. No.
Q. Could plaintiff have seen said stone at said time if he had looked, and stepped over it?
A. Yes.”
The complaint in. this case charges no negligence on the part of the city in the character of the material used in the original construction of the walk, and the defect or obstruction found by the jury as causing appellee’s fall and consequent injury, is no more than might occur in such walks where the ordinary care that the law requires in such eases had been used in maintaining and keepi'ug such sidewalk reasonably safe for travel. Upon the question here involved, the Supreme Court, in the case of City of Michigan City v. Boeckling, supra, said: “The basis of the action for an injury sustained because of a defect in a street is the negligence of the municipal corporation in failing to keep the street in a reasonably safe condition for travel. If there is no breach of this duty there is no right of action, and if there is no want of ordinary care there is no breach of duty. A municipal corporation does not warrant the safety of its streets, for its legal obligation is to exercise ordinary care and skill in making and keeping its streets in a reasonably safe condition for travel by persons who exercise ordinary care. ’ ’
We think it clear, under the authorities cited, that the facts found by the jury in this case, as to the size, char
Judgment reversed, with instructions to the court below to render judgment in favor of appellant on the answers to interrogatories.