186 Ind. 637 | Ind. | 1917
This is an action for damages for injuries resulting in the death of appellee’s decedent, alleged to have been caused by the negligence of appellant in failing to keep one of its streets in a reasonably safe condition for travelers. From a judgment in favor of
The complaint in brief alleges that the city of Wabash for several years prior to and on April 8, 1913, maintained an improved street running north and south, with brick sidewalks on either side, known as Vernon street, which at that time was intersected at right angles by a street running east and west known as Bent street, the east end of which was much traveled by the public by day and by night, in vehicles and on foot, and by the residents thereon from and to Vernon street; that appellee’s decedent, at the time of his death and for many years prior thereto, lived on the north side of Bent street, and about 350 feet east of Vernon street; that a stone quarry was located at the northeast corner of these streets, from which stone had been removed, leaving a pit about eighteen feet deep, its south line extending east about seventy-five feet along the north line of Bent street;-and, after alleging knowledge on the part of appellant of the location of the quarry pit, its depth, its precipitous sides, and proximity to Bent street, its unguarded condition continuously for more than five years, the dangers to which persons traveling on Bent street were exposed, and that the night of 'April 8 was dark and the street lights of the city not lighted, then charged appellant with negligently and„ carelessly omitting, failing and refusing to erect or cause to be erected any barrier, railing or other protection on the north side of Bent street, adjoining the quarry pit, to prevent persons traveling or passing along the same from falling therein; and by reason of the unguarded condition of the pit, Jesse L. Hobson, while traveling east upon Bent street, between nine
Appellant earnestly insists that the answers of the jury to interrogatories conclusively show that decedent was guilty of contributory negligence, and therefore these answers and the general verdict are in irreconcilable conflict.
Appellant contends that as the interrogatories show •a safe and an unsafe way for the decedent to reach his home over Bent street, it was his duty to take the safe way; or in other words, he should have taken the south, instead of the north side of the street, and having failed to do so, he was guilty of contributory negligence. This insistence cannot be sustained for the reason that there is no answer showing that he did not attempt to travel the way precisely as indicated by appellant as safe.-
Even if the decedent, on the fatal night in going home, did attempt to follow the north footpath, there is no answer showing the path so dangerously close to the pit as to warrant' the court in saying as a matter of law that'no ordinarily prudent person would have endeavored to follow it upon that occasion. But conceding that an attempt to follow the footpath on the north side of the driveway, under all the circumstances was dangerous, there is no answer showing that he attempted so to do. Again, it is said that the answers show that he might have gone home by way of Hutchens and Coate streets, but they also show that to be a dangerous way and one about which he had no knowledge. With these suggestions as to the points made on the answers, and keeping in mind that all reasonable presumptions are to be indulged in favor of the general verdict and none in favor of the answers, there is no such antagonism as will require the general verdict to give way to the answers; and the ruling of the trial court in this respect was right.
This conclusion, in our opinion is a correct one, although the city had made provision for light, as claimed, for from common knowledge it is certain that no positive means as yet' exist for keeping the light burning under all conditions.
Two specifications only in the motion for a new trial are presented: (1) That the verdict is not supported by sufficient evidence; (2) that the verdict is contrary to law. We have carefully examined the evidence, and in our opinion it was amply sufficient to warrant the court in sending the case to the jury, and with this view of the evidence, and the verdict being within the issues, it cannot be said that the verdict was contrary to. law. The trial court was justified in overruling the motion for a new trial. Judgment affirmed.