61 Ind. App. 90 | Ind. Ct. App. | 1915
This action was brought by appellant to recover damages for an injury alleged to have been received in a fall on an ice covered sidewalk while passing over appellee’s right of way. The jury returned a general verdict in favor of appellant for $2,750, but the court below sustained appellee’s motion for judgment on the facts found in answer to certain interrogatories submitted to the jury and rendered judgment in its favor.
The errors assigned and relied on by appellant for a reversal are the sustaining of this motion and the overruling of his motion for judgment in his favor upon the general verdict. Appellee assigns as cross error in this court the overruling of its demurrer to appellant’s complaint. The substantial allegations of the complaint are as follows:
In support of its assignment of cross error appellee contends that from the allegations of the complaint it is apparent that the place where appellant fell on the sidewalk was so plainly and palpably dangerous that a man of ordinary prudence, acting carefully and knowing its condition as did appellant, would not undertake to pass over it in the manner attempted by him, and where a defect in a sidewalk or street is so dangerous that a man of ordinary prudence would not attempt to pass over it, then, in the absence of some overwhelming necessity for him to do so, it is negligence to make the attempt. We do not believe the complaint is susceptible of the construction placed upon it by appellee’s learned counsel. It charges specifically “the various acts of negligence above set out and also contains the general charge that the injury was caused by said negligent acts, which makes the complaint amply sufficient when measured by the rule laid down in the case of Domestic Block Coal Co. v. De Armey (1913), 179 Ind. 592, 100 N. E. 675, 102 N. E. 99. See, also, Nickey v. Steuder (1905), 164 Ind. 189, 73 N. E. 117; Pittsburgh, etc., R. Co. v. Wilson (1904), 161 Ind. 701, 66 N. E. 899; Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 73 N. E. 91; City of East Chicago v. Gilbert (1915), 59 Ind. App. 613, 108 N. E. 29, 109 N. E. 404; City of Terre Haute v. Lauda (1915), 58 Ind. App. 480, 108 N. E. 392.
Having reached this conclusion with respect to the sufficiency of the complaint we need not consider the other question presented as to the effect of cross errors where the complaint is insufficient.
In answer to interrogatories the jury found the
In the ease of City of East Chicago v. Gilbert, supra, the court uses this language: “The responsibility of keeping in mind a known defect or obstruction in a street or sidewalk does not rest on the. traveler with the same degree of intensity as on the municipality. * * * It wuuld, therefore, seem to follow that a defect in a street or sidewalk might be of such a nature that a traveler, with prior knowledge of its existence, might momentarily forget there was such a defect without being chargeable with a want of due care, while the municipality, by reason of such duty resting on it, anda negligent failure to perform the same, might be held liable for an injury resulting therefrom.” There is no finding that the attention of appellant was not momentarily diverted.
Note. — Reported in 110 N. E. 105. As to the duty of a railroad company to persons on or near to its track, see 20 Am. St. 452. As to duty of railroad to conform its crossing to a change of grade of street, see L. R. A. 1915 B 766. .See, also, under (1) 33 Cye 1056, 1060; (2) 33 Cyc 273, 281; (3) 33 Cyc 1142; (4) 38 Cye 1930; (5) 38 Cyc 1927; (6) 28 Cyc 1422; (7) 3 Cyc 454.