76 Ind. App. 565 | Ind. Ct. App. | 1921
This is an action by appellee to recover the damages sustained by the next of kin of Clifford Clark, whose death, it is alleged, was caused by the following acts of negligence on the part of appellant: (1) In constructing and maintaining at the intersection of two of its streets a dangerous obstruction, consisting of a gutter and catch-basin, depressed seven or eight inches below the surface of said streets, and certain stone slabs set in connection therewith, which extended out into said streets a distance of three feet, and seven or eight inches above the grade thereof; (2) in permitting a
The contentions made with reference to the meaning of the closing sentence in instruction No. 21, given at the request of appellee, discloses that it is somewhat ambiguous. To give it the meaning for which appellant contends, would attribute to it a meaning so unreasonable that we feel warranted in assuming that the jury would not have so understood it, and especially in view of instructions numbered 6 and 7, given at the request of appellant, relating to the duty of a city with reference to keeping its streets in a safe condition for travel. We are of the opinion that there was no reversible error in' giving the instruction in question. We are also of the opinion that appellant’s criticism of instruction No. 11, given by the court on its own motion, does not show that reversible error was committed in giving the same, as it clearly informed the jury that appellee’s decedent must have acted as a person of ordinary prudence, under all the circumstances, in order that the negligence, if any,