40 Ind. App. 608 | Ind. Ct. App. | 1907
This was an action brought by appellee against the appellant on account of injuries sustained by appellee as a consequence of falling on a defective sidewalk on
There is no conflict in the evidence on the substantial facts, and it conclusively shows that the opening extended into the walk from the outside about eighteen inches, leaving thirty-eight inches of the walk inside of said opening in good condition for travel. This opening was on the same street and on the same side of the street, and within two and one-half blocks of- appellee’s residence, and was between appellee ’s residence and her church and the business portion of the city. Appellee passed over this sidewalk several times before the injury. She noticed the opening about six weeks prior to the date of the injury, but she neither saw it nor knew of it when injured. At the time of the injury she was walking slowly along said street about 10 o’clock in the morning, on a bright, sunshiny day. As she neared the opening in the sidewalk she addressed a remark to a gentleman on the porch of a nearby dwelling. This remark was replied to, and she proceeded on her way a few steps, when
The jury expressly found that appellee had no knowledge of the defect at the time of the accident. Our decision upon this question determines the questions raised on the complaint and the answers to the interrogatories.
Practically the only question in this case was whether appellee was negligent at the time of the injury. The evidence on this point presents facts which we have determined involve doubts sufficient to make it a question for the jury. But such submission should be made with very clear instructions as to the rights and duties of the parties. The instruction in question is not clear, and recognizes a distinction in negligence not sanctioned by our authorities, and was therefore reversible error. As was said in Lake Erie, etc., R. Co. v. Ford, supra: “The viciousness of the instruction in question lies in its tendency to lead the jury to infer that the legal standard of ordinary care was raised by the circumstances recited, thus making possible the inference that a
For error in this instruction the cause is reversed, with instructions to grant a new trial.