144 Ind. 695 | Ind. | 1896
This was an action brought by appellant for injuries occasioned by a defective bridge maintained by appellee upon a public street of said city.
After the cause had been submitted to a jury and the evidence of appellant heard, the appellee moved the court “to withdraw the cause from the jury and find for the defendant, and render judgment in favor of the defendant;” which motion, over the objection of the appellant, was sustained. Thereupon the court found for the appellee, and rendered judgment on such finding.
In Engrer v. Ohio, etc., R. W. Co., 142 Ind. 618, this court,. following City of Plymouth v. Milner, 117 Ind. 324, held that the proper practice under circumstances such as we are considering, if the defendant thought the plaintiff’s evidence made no case against it, was, not to move the court to withdraw the case
But in the Engrer case an examination of the evidence showed that the plaintiff was guilty of contributory negligence and could not, therefore, in any event, recover, so that the error of the court in withdrawing the case from the jury was harmless. Following that ruling it will therefore be necessary, in order to know whether the action of the court in this case was harmless or not, to examine the evidence and see whether it shows negligence on the part of appellee and contributory negligence on the part of appellant.
The evidence shows that after dark, on the evening of the accident, the appellant drove upon the bridge from the north and towards the business center of the city; that when he reached near to the south end of the bridge his horse came against a barricade or obstruction placed across the bridge, and began backing away, turning off or lunging partly to the right, when the left hind wheel of the buggy went over the east side of the bridge, from which the guard rails had been removed or suffered to decay, and the appellant fell out and down upon a rocky bottom, twenty-five or thirty feet below, breaking his leg and causing other injuries; that about two months previous the bridge, which was old and out of repair, had been in part closed to vehicles by placing the obstruction across the south end, leaving a passageway for pedestrians. Whether there had been at any time a guard thrown across the north end of the bridge to prevent or warn travelers from entering there, is left somewhat uncertain by the evidence; but there is no question that at the time of the accident, and for a long time previous, there was no su'ch obstruction to travel across that end of the bridge. That there had at one time been guards at each side of the bridge, but for a
It does not seem to us that the contributory negligence of the appellant is so obvious from the evidence, a part of which we have referred to, that the court ought to have directed a verdict against him. We think it was preeminently a case where the question as to the negligence of the city and the contributory negligence of the appellant should have been left to the decision of the jury.
It is true, that where the facts are undisputed, and where only one inference can be reasonably drawn from such facts, the question of negligence may be determined by the court as one purely of law.
But, as said in City of Franklin v. Harter, 127 Ind.
The case at bar goes further; for here the facts, not only as to the contributory negligence of the appellant, but also as to the negligence of the appellee city, as detailed in the evidence, are left in dispute. We think the case should not have been taken from the jury.
The judgment is reversed, with instructions to grant a new trial.