43 Ind. App. 100 | Ind. Ct. App. | 1909
This was an action brought by the appellee to recover damages for a personal injury alleged to have been sustained by him through the negligence of the appellant in failing to discharge its duty in keeping its streets in a reasonably safe condition for travel.
Appellant’s demurrer to the complaint was overruled, issues were formed, and a trial had, resulting in a verdict and judgment in favor of appellee.
The substantive averments of the complaint are that Patton street is a public street within the corporate limits of the defendant city; that the city wrongfully and negligently authorized and suffered to be placed in and across said street, a large quantity of building material; “that on the night of June 10 and morning of June 11, 1904, and for a long time previous thereto, said defendant negligently and carelessly, and with full knowledge of the existence thereof, permitted the same to remain there ‘without’ placing around, or' at the same, any safeguards, railing or lights, to give notice of such dirt, sand, etc., to prevent persons who might walk or drive upon said parts of the street from falling upon, over and against said obstructions;” that “this plaintiff, upon the night of said June 10, 1904, to wit, at or about 2 o’clock a. m. of June 11, was lawfully driving a pair of horses attached to a four-wheeled cab or hack, over and along said Patton street, in the vicinity of said obstruction, and without any notice or knowledge thereof, and without being able to see the same by reason of the darkness of the night, when, without negligence, and in the use of all due care, on the plaintiff’s part, and by reason of the negligence and unlawful acts of the defendant as aforesaid, said pair of horses stumbled against and ran against, on and over said obstructions, thereby breaking the tongue of said vehicle, injuring and frightening said horses so that in consequence thereof they became unmanageable and ran a distance of one block, when they made a sharp turn, and this plaintiff, by reason thereof, was hurled from the driver’s seat of said hack to the roadway, and then and there injured. ”
In the case of Commonwealth v. Thompson (1861), 84 Mass. 507, the defendant was prosecuted for keeping a dog, such dog not being licensed. It was there held that the word “without" was a positive and direct averment that the dog in question was not licensed. To the common understanding the meaning of the word “without” and the phrase “not being” are synonymous. It thus appears that the defendant negligently failed to perform its duty to keep the street in a safe condition for travel.
In the case of City of Goshen v. Alford (1900), 154 Ind. 58, it was held that a complaint alleging that the servants of the city excavated a hole on the line of Washington street, and negligently left the same open, uncovered and unguarded ; that in the night-time, while plaintiff was traveling on and over said street, exercising due care and having no knowledge of the existence of the hole, without fault fell into the same, thereby injuring himself, was sufficient.
It is therefore abundantly shown by direct averments of the complaint that the appellee’s injuries were proximately caused by the negligence complained of City of Laporte v. Henry (1906), 41 Ind. App. 197.