31 Ind. App. 467 | Ind. Ct. App. | 1903
Appellant appeals from a judgment in appellee’s favor for personal injuries.
Objection is first made to the action of the court in permitting, after the trial was begun, an amendment to the complaint, which consisted in inserting in the complaint
The complaint begins: “Josephine Barnett complains of the Union Traction Company of Indiana, and says,” etc. It does not' appear upon whom summons was served, and, in the absence of some showing to the contrary, it is presumed that it was served upon the defendant named in the complaint.
On August 16, 1900, and for about two weeks prior thereto, appellant was constructing its road north and south along Pendleton avenue, making an excavation about sixteen inches deep and eight feet wide, and extended the same across State street, a brick paved street. State street was paved north in the avenue to the inner line of the sidewalk, and made a walkway across the avenue on a line with the north sidewalk on State street. The brick street and walkway were reconstructed by appellant substantially as they were_ before, the bricks reset, and the cracks filled with sand, and the same tamped down, except that the bricks were not set as close as practicable, were laid loosely1, and the “gravel was not tamped solid enough.” On the above date there were lights in a store building at the northeast corner of this street crossing, which lighted the crossing where appellee was injured, and also lights at the southeast corner, and a street lamp burning at the southwest corner, which lighted the crossing; also a red lantern lighted, about two feet high, and placed on top of a barrel between the rails of the track, and about a foot north of the edge of the cross-walk; also a red light burning at the edge of the south cross-wall!;. Appellee lived on Pendleton avenue, about one-half square north of the crossing, and in front of her residence the avenue had been excavated for about two weeks prior to the above date; that frequently before that time she had observed the red signal lights placed on the
The above answers to interrogatories show that for some time prior to the injury appellee knew the nature of the work that was being done in the street; that she had seen the red lights and knew their significance; that one of these lights was at the time burning near the edge of the walkway over which she was passing, and that there was
The answers do not find the exact nature of the defect that caused the injury, nor do they find that it was such that a person must have seen it when passing over the walk1 way. It appears that appellant had reconstructed the crossing, had replaced the brick, and had left the walkway open for travelers to pass over. There were no red signal lights upon the crossing itself. There was nothing upon or near the crossing to warn a traveler that the crossing itself was dangerous. Appellee had the right to presume that the crossing was safe, and, in the exercise of due care, to act upon that presumption. The jury found by their general
No harmful error was committed against appellant in striking out the answer of a witness to the effect that he never missed the red lights at the crossing, and in not permitting appellant to prove by the same witness that he drove back and forth over the crossing and noticed the red lights there, and that they were never absent to his knowledge, for the reason that the jury found as a fact that the red lights were burning at the crossing the night of the injury.
Objection is made to certain evidence introduced for the purpose of showing that appellant was notified of the condition of the crossing. We fail to see how any harmful error was committed in this respect. The appellant company was sole defendant. The condition of the crossing resulted from the alleged unskilful reconstruction of the crossing by appellant after it had been torn up for the construction of its tracks. It was the duty of the company to restore the street as nearly as practicable to its former condition. It was bound to know whether it had done so. Had the municipality been joined as a defendant, a different question might be presented. The evidence in
Judgment affirmed.