69 Ind. App. 565 | Ind. Ct. App. | 1918
This is an appeal from a judgment for $100 damages for personal injuries alleged to have been received by appellee on October 4, 1912, while using a certain sidewalk in the appellant town, and caused by an elevation or defect in the walk against which she struck her foot, .throwing her down.
The negligence charged is in brief that on said date appellant negligently and carelessly allowed and permitted its sidewalk on High street and in front of the residence of Henry Sponsberg to be and remain out of repair and dangerous to travelers in this: The surface of the cement sidewalk at said point is smooth and level (with no defects or elevations thereon except at the point hereinafter. described and complained of) for a distance of 75 feet on each side of an abrupt elevation; that said elevation is of the height of about two inches; “that the cement on the under part of such elevation has been from time to time chipped out and leaves extended above the surface of the sidewalk a sharp edge about one-fourth inch in thickness along the entire width of said elevation.” (Our italics.)
Issues were joined on the complaint by answer in general denial. With their general verdict' the jury returned answers to interrogatories.
The errors assigned and relied on for reversal are: (1) Overruling of appellant’s motion for judgment on the answers to interrogatories; and (2) the overruling of its motion for a new trial.
In support of the first alleged error, supra, appellant’s chief contention is that the answers show that the defect was not such as to render the sidewalk dangerous to travel, and therefore the town was not liable. In other words, appellant would have the court declare as a matter of law that a defect or elevation in an otherwise perfectly smooth cement sidewalk “% of an inch in height” was not dangerous to a person using the sidewalk in the exercise of ordinary care. To support its contention appellant has cited City of Huntington v. Bartrom (1911), 48 Ind. App. 117, 95 N. E. 544, and Newton v. Worcester (1899), 174 Mass. 181, 54 N. E. 521.
The descriptive facts set forth in the complaint, which for convenience we have italicized, are supported by the evidence, and show that the character of the elevation was such that it was or could be extremely dangerous. The facts therefore are distinguishable from the cases cited.
In City of Huntington v. Bartrom, supra, importance is given to the fact that the obstruction, the protruding stone, “was rounded and sloped down from its highest part to the gravel and in the general level of the walk,” citing in support of the conclusion reached the case of Newton v. Worcester, supra, which makes the character of the elevation as well as its height a factor in determining its dangerous condition.
■In the latter case the court uses this language: “ ‘There were no projections or sharp corners,’ and ‘the surface of the depressions was smooth.’ ”
In City of Michigan City v. Boeckling (1890), 122 Ind. 39, 41, 23 N. E. 518, the court said: “Whether an obstruction or a defect in a street is such as it is negligence on the part of the municipality to suffer to exist, is generally, and in the main, a question of fact for the jury. * * * A difference is held to exist between cases where the inclination is gradual and those in which it is abrupt.”
In Dondono v. City of Indianapolis (1909), 44 Ind. App. 366, 89 N. E. 421, this court had occasion to consider a somewhat similar question, and there said:
Under the motion for a new trial it is urged that the verdict is not sustained by sufficient evidence, and is contrary to law, in that: (1) It does not show that the defect complained of was dangerous, and therefore the town was not negligent; and (2) that the evidence does show that appellee was guilty of contributory negligence and should not recover. In our discussion of the answers to interrogatories we have disposed of. the first proposition.
It appears from appellee’s own testimony that the injury occurred in the nighttime and it was dark; that
must use care commensurate with the known danger and the circumstances. Morrissey v. Cleveland, etc., R. Co. (1916), 61 Ind. App. 90, 110 N. E. 105, 108, and cases cited; City of East Chicago v. Gilbert (1915), 59 Ind. App. 613, 108 N. E. 29, 109 N. E. 404; Town of Monticello v. Condo (1911), 47 Ind. App. 490, 94 N. E. 893; Town of New Castle v. Mullen (1909), 43 Ind. App. 280, 87 N. E. 146; City of South Bend v. Hardy (1884), 98 Ind. 577, 586, 49 Am. Rep. 792; City of Bedford v. Neal (1896), 143 Ind. 425, 41 N. E. 1029, 42 N. E. 815; Sias v. Village of Reed City
Instruction No. 14 of the court’s instructions is complained of, in that it told the jury that “it is proper for you to consider every phase of the injuries which are charged in the complaint,” and that’ the complaint charged that appellee “has suffered great pain and anguish as a result of said injuries and will in the future suffer great pain and anguish from said injuries, and thereby be deprived of the satisfaction and comforts of life such as those enjoy who are possessed of sound bodies and the free use of its members.” South Bend Brick Co. v. Goller (1910), 46 Ind. App. 531, 93 N. E. 37; Pittsburgh, etc., R. Co. v. O’Conner (1909), 171 Ind. 686, 85 N. E. 969.
Other instructions, it is claimed; omit certain elements, and are therefore erroneous. When the instructions are considered as a whole, the jury were fairly instructed as to the law of the case, and the omissions appear to have been supplied.
Judgment affirmed.