167 Ind. 516 | Ind. | 1906
Appellee brought this action for damages for personal injuries received on account of an alleged defect in one of the streets of appellant city. He recovered judgment in the trial court for $15,000, which was affirmed by the Appellate Court, and an appeal therefrom taken to this court.
The errors properly assigned challenge the decision of the trial court in overruling demurrers to each paragraph
The first paragraph of appellee’s complaint is substantially as follows: That on October 23, 1897, for many years prior thereto, and ever since, the appellant was, has been, and is, a municipal corporation organized under the laws of this State; that at all times mentioned there was within its corporate limits a street, with sidewalks, known as Martindale avenue, situated in the northeastern portion of the city, and extending north and south, and intersecting at right angles streets running east and west known as Nineteenth, Twentieth, and Twenty-first streets; “that beginning at a point just south of the south line of said Twenty-first street, and extending thence south, just along the east line of said Martindale avenue, there existed at the time before mentioned and for several years prior to that time a ditch, commonly known as the ‘state ditch,’ and for a distance of nearly a square from that point above stated said ditch extended along close to the east line of said Martin-dale avenue, so close as to infringe upon the line of the sidewalk of said avenue; that said ditch had steep banks, and it was on an average about twelve feet deep; that at a point south of said Twenty-first street the banks and bottom of said ditch, for a long distance, were filled with rocks of all shapes and sizes, and this condition was maintained at all times mentioned; that by reason of the fact that said ditch extended close to the east line of said Martindale avenue, as described, it was a menace to travelers along the east sidewalk of' said Martindale avenue, and made the sidewalk along said avenue more than ordinarily dangerous to persons traveling along the east sidewalk of the avenue; that this condition of said avenue and said ditch had existed for at least two years prior to the time of the happening of the injuries to the appellee; that appellant knew, or by the exercise of reasonable diligence could have known, of the
Appellant’s motion for a new trial alleged that error was committed in refusing to require the jury to make specific answer to interrogatory twenty-six, in refusing to give certain instructions tendered, in giving each instruction given by the court upon his own motion, and in numerous rulings with regard to the admission and exclusion of evidence. The motion further alleged that the damages are excessive, and that the verdict is not sustained by sufficient evidence, and is contrary to law.
The instructions so given by the court are vigorously assailed. It may be conceded that in themselves they are not misleading or erroneous, and yet it does not follow that the instruction tendered should not have been given. If the instructions given by the court had been accompanied by the one requested upon the same subject, the law with respect to the burden and the manner of proving contributory negligence would have been fully and accurately stated as heretofore decided by this court. M. S. Huey Co. v. Johnston (1905), 164 Ind. 489; Town of Winamac v. Stout (1905), 165 Ind. 365; Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274. The instruction requested embodied a pertinent and correct statement of the law not
This error was emphasized by the giving of erroneous instructions by the court upon its own motion, to the effect, that appellee was presumed to have used ordinary care in traveling over and upon the street or sidewalk in question. Instruction twenty-five, given by the court, was as follows: “It was the duty of the plaintiff, under the first paragraph of complaint, to use ordinary care in traveling over and upon the street or sidewalk in question, as alleged, and the presumption in this ease is that he performed that duty and exercised ordinary care in traveling over and upon said street and sidewalk.” Instruction thirty was the same in effect, but modified to apply to the issue joined upon the second paragraph of complaint.
The judgment is accordingly reversed, with instructions to sustain appellant’s motion for a new trial, and -for further proceedings.